Petition for Writ of Certiorari — Swain v. Alabama

Supreme Court brief1965

Ask Donna

What actually matters in this document.

Text

Office-Supreme Court, U.S.

LitmrAnY FILED

SOPREME COURT. U,

In THE JOHN F. DAVIS, CLERK

Supreme Comt of the United States

OctoseR Trrm, 1965

N0.6-0 0

Rosegt Swain,

Petttioner,

—

ALABAMA.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

Jack GREENBERG

James M. Nasart, III

MicHaEL MELTSNER

Frank Herrron

Metvyn Zane

Suite 2030

10 Columbus Circle

New York, New York 10019

OnzELL Bruuinesiey, JR.

Peter A. Hat

1630 Fourth Avenue North

Birmingham, Alabama

AntTHony G. AMSTERDAM

3400 Chestnut Street

Philadelphia, Pa.

Attorneys for Petitioner

INDEX

_ PAGE

RR esa neste rere airy ne ne NN PORTO NE ICES EE OD 1

IIE decedent cee cc Peet Na Ay PEO 1

I TON oireccpechattet rs sarieccasctienannes 2

Constitutional and Statutory Provisions Involved ...... 3

ME Scsceeestitcivss tei padcietocestoindesnsecccmannmnadacnblas weesecesneeeee

Exclusion of Negroes from Jury Panels ................ 9)

The Solicitor’s Remarks to the Jury 6

The Application of the Death Sentence for Rape

I IEE scercttensacncectceccotne 8

Cruel and Unusual Punishment ...... 10

Exclusion of Women from Jury Service ................ 10

How the Federal Questions Were Raised and Decided

MOTIIT -ssicinsciedsoceeanisnccceanamedatasesneuasseyceaempeaineateneasieapesaancniens 11

Reasons for Granting the Writ

I. Petitioner Adequately Alleged in His Petition

for Writ of Error Coram Nobis Below That His

Conviction Deprived Him of Due Process of Law

and Equal Protection of the Laws as Guaranteed

by the Fourteenth Amendment to the Constitu-

tion of the United States Because the Prose-

cutor Systematically Struck Negroes from Petit

OG FT na ervincicssineenernsreninctnnsnerserbilamtcie 14

PAGE

Il. Petitioner Was Denied Rights Under the Consti-

tution When (A) Denied the Opportunity to

Offer Proof of Racial Application of the Death

Penalty in Alabama and (B) the Jury Which

Convicted and Sentenced Him Had Unfettered

Discretion to Impose Capital Punishment for

All Offenses of Rape—in the Absence of Ag-

gravating Circumstances, Permitting Cruel and

MPI I cscs 19

A. Petitioner’s Equal Protection Contention

Which the Court Below Wrongly Refused

to Permit Him to Establish Presents an Im-

portant Question for Consideration by this

Cormmrt-cmn Cprtrer snes 19

B. The Court Should Grant Certiorari to Con-

sider Petitioner’s Contention That His Sen-

tence Is Unconstitutional Under the Highth

and Fourteenth Amendments ............................ “29

III. Petitioner Was Denied Rights Under the Fifth

and Fourteenth Amendments When the Circuit

Solicitor Was Permitted to Comment on His

Failure to Take the Stand _.....000020000000000... 32

IV. Petitioner Was Deprived of Due Process of Law

and Equal Protection of the Laws in Violation

of the Fourteenth Amendment Because Women

Were Systematically Excluded from the Juries

Which Indicted and Tried Him ............00.000.......... 34

I trees nor ancatecne ca sapeeinesheaaeacmegiicdmaninanciae 38

APPENDIX

Judgment of Supreme Court of Alabama .............. la

Coram Nobis Petition ..........................c00...ccccecc--ceece-e 2a

lll

TaBLE OF CaSES

PAGE

Aaron v. Holman (M. D. Ala., C. A. No. 2170-N) “....... 22

Aaron v. State of Alabama, 273 Ala. 337, 139 So. 2d

_ Bprmetionentee 26

Akins v. Texas, 347 U. 8. 478 +..........--..-.-----.-c.-ceeeseoseeseeseees 17

Alabama v. Billingsley (Cir. Ct. Etowah County,

Te FD cnecceseneetinsosetccmnnsinensesnecssenendennsiajpeaneicaninianannniinnin 26

Alabama v. Butler (Cir. Ct. Etowah County, No. 744) .. 26

Alabama v. Liddell (Cir. Ct. Etowah County, No. 745) .. 26

Allen ¥. State, 137 S. E. 2d 711, 110 Ga. App. 56 ........ 36

Anderson v. Martin, 375 U. S. 399 ................--.--.---------- 17, 23

Arnold v. North Carolina, 376 U. S. 773 .................------ 17

Ballard v. United States, 329 U. S. 187 ......................- 36

Brown v. Board of Education, 347 U. S. 483 ................ 23

Brown v. State, 277 Ala. 353, 170 So. 2d 504 —............. 15

Burstyn v. Wilson, 343 U. S. 495 -........-----------------0-0----- 28

Bush =. Rentatky, 207 VU. G. 199 ......1 24

Carr v. Montgomery County Bd. of Education, 232

F. Step. 715 (M. D. Ala. 1964) .......................-...--- 27

Carter w. Temes, 177 U. G. 468 nes 16, 17

Cline v. Frink Dairy Co., 274 U. S. 445 ............-.--..-..-.---- 28

Coleman v. Alabama, 377 U. S. 129 .....................--..--.---+---- 24

Connally v. General Construction Co., 269 U. S. 385 ..... 28

ee Be is Wy MD netenreicencenensconneseesecesepnenien 28

Craig v. Florida (Sup. Ct. Fla., No. 34,101) -.................-. 19

Dombrowski v. Pfister, 380 U. S. 479 ...............22..2.----.-2---- 28

Ex parte Hamilton, 271 Ala. 88, 122 So. 2d 602, rev’d,

368 U. S. 52 coram nobis petition granted, 273 Ala.

a 8 ee ee ee 15

Ex-parte Virginia, 100 U. S. 339 2... eeeeseeeeeeees 16

PAGE

Ex parte Williams, 268 Ala. 535, 108 So. 2d 454, cert.

i I rs Ha MIE psec ceneteencishientinoditeespnshansuaaniambindibiadienns 15

Eubanks v. Louisiana, 356 U. S. 584 —.0000.... ee 17

Fowler v. Rhode Island, 345 U. S. 67 ~.....0222020..20.eeeee 23

Freedman v. Maryland, 380 U. S. 51-0000... 28

Gibson v. Mississippi, 162 U. S. 565-200... 16

Griffin v. California, 380 U. S. 609 0.00... 3, 32, 33

8 8 8 aa 17

Hamilton v. Alabama, 376 U. S. 650 _..00002 wu... 17, 23

Hamilton v. State, 273 Ala. 504, 142 So. 2d 868 ............ 15

Hernandez v. Texas, 347 U. S. 475 2000... 17, 24, 35

Herndon v. Lowry, 301 U. S. 242 000. 28

Sha Ns II IS MI SI siicdcesctndssarctunnndconeennciennincanosacas 17

ee, 8S emnnanamenennem 34, 35, 36

Lee v. Macon County Bd. of Education, 231 F. Supp.

ROE RI IONE 27

Louisiana v. United States, 380 U. S. 145 — W200. 28

Louisiana ex rel. Scott v. Hanchey (20th Jud. Dist. Ct.,

Parish of West Feliciana) ..................00....0...ccccsceeeeeeee 22

MacLaughlin v. Florida, 379 U. S. 184 000... 23, 29

SI Wc, I, SE Os OR sc cccscetcnsncceensescMliascaconncsneneen 32

Sem a oer reneer 16-17

Maxwell v. Stephens, —— F. 2d —— (8th Cir.), No.

RE ae eee ee. 22, 29

Mitchell v. Stephens, 232 F. Supp. 497 (E. D. Ark.

RS oeioseie hss abicadicctad daadeaes nico ccinecnantasasndidaiadineiiedaaunsciiacaaee 22

Moorer v. MacDougall (E. D. S. C., No. AC-1583) ........ 22

N.A.A.C.P. v. Alabama, 357 U.S. 449 0000. 23

N.A.A.C.P. v. Button, 371 U.S. 415 2202s. 28

PAGE

Napue v. Illinois, 360 U. S. 204 1... 17

Neal v. Delaware, 103 U. S. 370 ........---.2-------------e0----e-e000+ 16, 24

Niemotko v. Maryland, 340 U. S. 268 ................-.-------- sata 23

Norris v. Alabama, 294 U. S. 587 ..........--.------------ 0 17

Patton v. Mississippi, 332 U. S. 468 .............--.--------------- 17

Pennsylvania ex rel. Herman v. Clandy, 350 U. S.116.. 24

Pierre v. Louisiana, 306 U. S. 354 .........---.----------eeee 17

Ralph v. Pepersack, 335 F. 2d 128 (4th Cir. 1964) ....29-30

Reece v. Georgia, 350 U. S. 85 ...............-.----- 17

Rogers v. Alabama, 192 U. S. 226 ..........------------------------- 16

Ross v. United States, 180 F. 2d 160 (6th Cir. 1950) .... 34

Rudolph v. Alabama, 375 U. S. 889 .........---------------------++ 29, 31

Shelley v. Kraemer, 334 U. S. 1 ...... 23

Skinner v. Oklahoma, 316 U. S. 535 ........--...------------------- 31

Smith v. Cahoon, 283 U. S. 553 ........-.-----------------0-----e-00-0 28

Smith v. Texas, 311 U. S. 128 ......2.2222222-------p---0----e--eeoe 17, 36

Strauder v. West Virginia, 100 U. S. 303 ................-..- 16, 35

Swain v. State, 275 Ala. 508, 156 So. 2d 368 ........ 4, 18, 30, 33

Taylor v. Alabama, 335 U. S. 252 . 24

Viereck v. United States, 318 U. S. 236 .......... Sccssainedaalidat 34

Watson v. City of Memphis, 373 U. S. 526 -...............---- 23

Wilson v. United States, 149 U. S. 60 ...................-..------ 32, 34

Winters v. New York, 333 U. S. 507 ...........-..-.--------------- 28

Yick Wo v. Hopkins, 118 U. S. 356 ...............-.-------------- 14, 23

STaTUTES

18 U.S. C. §3841 .... sdk etiiaibalnaenclannidaauannipeueah 32

20.6 6 CH CD once 1

PAGE

|, | REND R UL OREN RCT OMIT ee 36

Rev. Stat. §1977 (1875), 42 U. S. C. $1981 (1964) ........ 23

Civil Rights Act of 1866, Ch. 31, §1, 14 Stat. 27 ........ 22, 24

Enforcement Act of May 31, 1870, ch. 114, §§16, 18,

Be es I, SH jcccovtecncesananiesinicsiatenipeanioateaiuiiianidiaiaies 22

B.. GONE. GI cccicsnssccssshcpaaecctivntidsciatsteinapiibaiinieabiapeailasedatinids 27

Ala. Code Ann. Tit. 14, §395 (Recomp. Vol. 1958) ....3, 8, 10,

13, 19, 29

Ala. Code Asm. Tit. 16, GOOG oinccccscsscccsssiccoseccsscseseccsseens 27

Ala. Code Ann. Tit. 14, §§397, 398 200... ecccccceceseeeeeee 19

SA. NORD TT Bg GO sdesinliccnctstsicitnsnsssniciosatigvitedaid 4, 33

Bde, Code Amm. Tie. FO, GBI ..ncccccccccsccsecassscscncsicossoessess 3, 10, 34

A Fe ne ne 27

Ma, Ge Bas "TR i I ssicisiseitceescccececctmieinisntncisnis 27

Ala. Code Ann. Tit. 48, §§186, 196, 464 0000000. . 27

BAD. COGS A. TEs Tg I se siccccctnindeeseviinscnstinsrinntiaanctes 27

Ark. Stat. Ann. §§41-3403, 432153 (1964 Repl. Vols.) .... 19

RE TR Bs I esha ataschesaaiccesticceneneniionciibocnnecs 19

SE Tes TN: TE sd eeciceaececstsictsenecaiienttteceacleanenassin 19

Fla. Stat. Ann. $794.01 (1964 Cum. Supp.) .................... 19

Ga. Code Ann. §26-1302 (1963 Cum. Supp.) .................... 19

Ga. Code Ann. §26-1304 (1963 Cum. Supp.) .................... 19

Ky. Rev. Stat. Ann. §435.090 (1963) 2.0022... eeeeeeees 19

La. Rev. Stat. Ann. §14:42 (1950) 200. 19

ies aI, CORE, OE Tig OI cecatescicricrnscerptsncedndjvecesinnecnteniiion 19

Md. Ann. Code, art. 27, §§461, 462 (1957) -.....0200020000.... 19

Miss. Code Ann. 1942 (Recomp. Vol. 1958), §1762 ........ 35

Miss. Code Ann. §2358 (Recomp. Vol. 1956) .................... 19

Vernon’s Mo. Stat. Ann. §559.260 (1953) 20000020... 19

PAGE

Nev. Rev. Stat. §200.360 (1963) ....................-c-cc-ec-eeeeeeees 19

Nev. Rev. Stat. §200.400 (1963) -...............-.-.--c-:--s-seeeee-ees 19

N. C. Gen. Stat. §14-21 (Recomp. Vol. 1953) ................ 19

Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958) ........ 19

S. C. Code Ann. §§16-72, 16-80 (1962) -......2.222222.--c20000-- 19

S. C. Code, 1952 §§38-52 is es 35

Tenn. Code Ann. §§39-3702, 39-3703, 39-3704, 39-3705

CIID). sircictsesicnencicininentncetncriesininapemensssininisaininansanmmmsenensnette 20

Tex. Pen. Code Ann., arts. 1183, 1189 (1961) ................ 20

Va. Code Ann. §$18.1-16 (1960) ...2.222.22.......csc-ccccssereereneee 20

Va. Code Ann. §18.1-44 (Repl. Vol. 1960) .................. 20

Orner AUTHORITIES

Weihofen, The Urge to Punish, 164-165 (1956) -.......... 27

Bullock, Significance of the Racial Factor in the Length

of Prison Sentences, 52 J. Crim. L., — & Pol.

ek, GES GED ctcennccetentiniecnnictin 27

Fairman, Does the Fourteenth Amendment Incorporate

the Bill of Rights, 2 Stan. L. Rev. 5 (1949) -.............. 22

Hartung, Trends in the Use of Capital Punishment,

284 Annals 8 (1952) .... 27

Lewis, The Sit-In Cases: Great Expectations, [1963]

Supreme Court Review 101 28

Packer, Making the Punishment Fit the Crime, 77

Harv. L. Rev. 1071 (1964) 30, 31

tenBroek, Thirteenth Amendment to the Constitution

of the United States, 39 Calif. L. Rev. 171 (1951) ... 22

Vill

PAGE

Wolfgang, Kelly & Nolde, Comparison of the Executed

and the Commuted among Admissions to Death

Row, 53 J. Crim. L., Crim. & Pol. Sci. 301 (1962) ..... 27

Note, 109-U. Pa. L. Rev. 67 (1960) ............00.20.e eee 28

Cong. Globe, 39th Cong., lst Sess. 475 (Jan. 29, 1866)

RRR SER ee en ee a 24

Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866) 24

New York Times, July 24, 1965, p. 1, col. 5 000... 31

United States Department of Justice, Bureau of

Prisons, National Prisoner Statistics, No. 32: Ex-

a |__| ena ee na 21

IN THE

Supreme Court of the United States

Ocroser TERM, 1965

BN. sesisiins

Roseret Swain,

Petitioner,

_—

ALABAMA.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

Petitioners pray that a writ of certiorari issue to review

the judgment of the Supreme Court of Alabama entered

in the above-entitled case on June 25, 1965.

Opinions Below

The order of the Supreme Court of Alabama denying

petition for leave to file petition for writ of error coram

nobis is unreported and is set forth in the appendix, mfra,

p. la. No opinion accompained that order. The opinion

of the Supreme Court of Alabama affirmed by this Court

March 8, 1965, 380 U. S. 202, rehearing denied 381 U. S.

921, is reported at 275 Ala. 508, 156 So. 2d 368 (1963).

Juriodiction

The judgment of the Supreme Court of Alabama was

entered June 25, 1965. The jurisdiction of this Court is

invoked pursuant to 28 U. 8. C. §1257(3), petitioner

having asserted below and asserting here deprivation of

rights secured by the Constitution of the United States.

Questions Presented

1. Whether petitioner was denied Fourteenth Amend-

ment rights when tried and convicted by a jury chosen by

systematic and arbitrary exclusion of Negroes from jury

service as a result of an unvarying practice of the state’s

attorney who for 12 years always struck Negroes from

the petit jury or sought agreements with defense counsel

to strike all Negroes at the outset of the jury selection

procedure.

2. Whether petitioner, a Negro sentenced to death for

the rape of a white woman, was denied rights guaranteed

by the Fourteenth Amendment when he has shown that

11 times as many Negroes as whites have been executed

for rape in Alabama, a proportion at great variance with

the number of Negroes in the state’s population, or who

committed the crime of rape, and offers to show the grossly

disproportionate number of Negro executions can be ex-

plained only. by race.

3. Does Alabama’s grant to juries of unfettered dis-

cretion to impose capital punishment for all offenses of

rape irrespective of the existénce of aggravating circum-

stances, permit cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments.

4. Whether petitioner was denied rights guaranteed by

the Fourteenth Amendment when the circuit solicitor

commented on petitioner’s failure to take the stand in his

own defense contrary to this Court’s decision in Griffin v.

California, 380 U. S. 609.

5. Whether petitioner was convicted in violation of his

Fourteenth Amendment rights when the State of Alabama

by statute makes women totally ineligible for jury service.

Constitutional and Statutory Provisions Involved

This case involves the Eighth Amendment and Section 1

of the Fourteenth Amendment to the Constitution of the

United States.

. This case also involves the following statutes of the State

of Alabama:

Ala. Code Ann., Title 14, §395

Punishment of Rape. Any person who is guilty of the

crime of rape shall, on conviction, be punished, at the

discretion of the jury, by death or imprisonment in

the penitentiary for not less than ten years.

Ala. Code Ann., Title 30, §21

Qualifications of Persons on Jury Roll. The jury com-

mission shall place on the jury roll and in the jury

box the names of all male citizens of the county who

are generally reputed to be honest and intelligent men

and are esteemed in the community for their integrity,

good character and sound judgment; but no person

must be selected who is under twenty-one or who is

an habitual drunkard, or who, being affiicted with a

permanent disease or physical weakness is unfit to

discharge the duties of a juror; or cannot read English

or who has ever been convicted of any offense involving

moral turpitude. If a person cannot read English and

has all the other qualifications prescribed herein and

is a freeholder or householder his name may be placed

on the jury roll and in the jury box. No person over

the age of sixty-five years shall be required to serve

on a jury or to remain on the panel of jurors unless

he is willing to do so.

Ala. Code Ann., Title 15, §305

The Defendant nm Criminal Cases a Competent Witness

for Himself. On the trial of all indictments, complaints,

or other criminal proceedings, the person on trial shall,

at his own request, but not otherwise, be a competent

witness; and his failure to make such a request shall

not create any presumption againt him, nor be the

subject of comment by counsel. If the solicitor or other

prosecuting attorney makes any comment concerning

the defendant’s failure to testify, a new trial must be

granted on motion filed within thirty days from entry

of the judgment.

Statement

The petitioner was indicted for rape by the Grand Jury

of Talladega County, Alabama and convicted in the Circuit

Court of the County, May 25, 1962. The jury fixed his

punishment at death by electrocution. On appeal, the

judgment was affirmed by the Supreme Court of Alabama,

Swain v. State, 275 Ala. 508, 156 So. 2d 368 (1963).

Subseqntently, on writ of certiorari, this Court affirmed

the judgment of the Supreme Court of Alabama finding

petitioner had failed to prove (1) exclusion of Negroes

from county grand and petit jury venires and (2) exclu-

sion of Negroes from jury venires bythe state’s misuse

of peremptory strikes in violation of the Fourteenth

Amendment, 380 U. S. 202, rehearing denied 381 U. S. 921

(1965).

On June 25, 1965, petitioner filed in the Supreme Court

of Alabama petition for leave to file petition for writ of

error coram nobts in the circuit court of Talladega County

(hereafter referred to as coram nobis petition) and_peti-

tion for stay of execution. Argument, was heard imme-

diately following filing by the full court, and on the same

day both petitions were denied. The coram nobis petition.

and the order of the Supreme Court appear in the

appendix, infra, pp. la-25a. On July 2, 1965, Mr. Justice

Black granted a stay of execution pending the disposi-

tion of this petition.

The verified coram nobis petition alleges that petitioner

has been tried, convicted and sentenced in violation of

the Constitution of the United States on a number of

grounds set forth in the petition, with supporting

affidavits.. A summary of these allegations follows.

Exclusion of Negroes from Jury Panels

Petitioner contends that he was deprived of due process

of law and the equal protection of the laws as guaranteed

by the Fourteenth Amendment by reason of systematic

and arbitrary exclusion of Negroes from service on petit

juries in the Circuit Court of Talladega County, as a

result of a consistent and unvarying practice of the circuit

solicitor who during a period of 12 years (1) always

struck Negroes from petit jury venires or (2) sought or

1 The coram nobis petition prayed that the Supreme Court of Alabama

grant an evidentiary hearing on those issues as to which attached affida-

vits did not suffice (17a).

entered into agreements with defense counsel to strike all

Negroes at the outset of the jury selection procedure.

No Negro has served on a petit jury in the County

between 1950 and the date of petitioner’s trial in 1962

in either a civil or criminal case and petitioner offered

to prove “that the Circuit Solicitor of Talladega County

was responsible for the total absence of Negroes... in

that he consistently struck all Negroes remaining on the

venire if he was unable to obtain the agreement of defense

counsel to the elimination of Negro veniremen” (6a). It

was alleged that this Court. “indicated in its opinion in

this case (380 U. S. 202] that such a practice, if proved,

would constitute a violation of the Fourteenth Amend-

ment” and that the issue “had not been adequately heard”

(6a).

Petitioner also alleged that he was “unable to present

proof of misuse of peremptory strikes by affidavit because

the individual best able to execute such an affidavit would

be the Circuit Solicitor who represented the State of

Alabama at petitioner’s trial and who is adverse to the

interest of petitioner. The peremptory strike issue, there-

fore, can only be decided after a full hearing with com-

pulsory process, examination and cross-examination of

witnesses” (6a).

The Solicitor’s Remarks To The Jury

Petitioner contends that he was deprived due process

of law and equal protection of the laws as guaranteed by

the Fourteenth Amendment because the circuit solicitor

(1) unfairly commented on his failure to take the stand

in his own defense and (2) aroused racial prejudice and

inflamed the minds of the jury (3a). It was alleged that

the transcript of petitioner’s trial revealed the circuit

solicitor made the following comments during his argu-

ment before the jury (7a, 8a) :?

Gentlemen do you think we have proved these ele-

ments?! I submit to you it is not denied, there is not

a word come from this stand that denied the charge

of rape. We have proved it to you, gentlemen, beyond

a reasonable doubt that this prosecuting witness was

raped. Now the only question that the defendant has

raised here by his attorneys is the question of

identify (sic). (Emphasis added.) (Transcript p. 354.)

The solicitor further remarked:

Do you think this young lady, Jimmie Sue Butter-

worth, consented to have this defendant have the

rough and rugged intercourse where this impact

against her body caused loose hairs to come out of

his privates? You gentlemen know the way a colored

person—you have seen them you have seen their hair.

You know, gentlemen, it is coarse. You know that

it is rough. You know from your own experiences

with everyday life that when any two forces meet

each other and that there is a rubbing or banging

there are going to be hairs lost. Most of you men

are married men. You have had everyday experiences.

You know from your own knowledge that people shed

hairs and they lose them, but gentlemen how many

of you if they took us out and shook our clothes would

find negroid hairs falling from our privates? (Tran-

script p. 354.)

2 The transcript of petitioner’s trial is part of the certified reeord of

petitioner’s original appeal on file with the Court.

The Application of the Death Sentence For Rape In Alabama

The Alabama Code, Tit. 14 §395, punishes rape, at the

discretion of the jury, by death or imprisonment in the

penitentiary. for not less than ten years. Petitioner was

sentenced to death upon conviction of raping a white woman.

The petition alleged that the State arbitrarily and dis-

criminatorily imposes the sentence of death upon Negroes

charged with rape, but does not impose the same penalty

upon white men charged with rape under the same circum-

stances in violation of the Fourteenth Amendment and that

§395 violates the Fourteenth Amendment because it affords

the jury unlimited, unrestricted and unreviewable discre-

tion in choice of sentence and does not establish any pro-

cedure to permit separate consideration of guilt and sen-

tence (4a).

The population of Alabama between 1930 and the present

according to the U. S. Census, has been 35.7% nonwhite

in 1930, 34.7% in 1940, 32.1% in 1950, and 30.1% in 1960.

Between January 1, 1930 and December 31, 1964, the State

of Alabama executed 134 persons, of whom 107 or 79%

were Negroes and 27 or 20.2% were white. Between Jan-

uary 1, 1930 and December 31, 1964 the State of Alabama

executed 22 persons for the crime of rape. Twenty or 90.9%

of these were Negroes while 2 or 9.1% were white (11a).

Records on file in the Supreme Court of Alabama show,

to the extent that they reveal information concerning the

victims’ race, that in every case involving the execution

of a Negro or white man for the crime of rape, the victim

has been a white woman.’ Eleven of these case records

contain explicit statements that the victim was white. In

3 Allegations were supported by case citations, docket numbers, dates

of decision as well as affidavits of attorneys who had examined the records

of the cases cited (20a-24a).

five other cases involving the execution of Negroes, a rea-

sonable inference may be drawn that the victim was white.

Five other cases resulting in the execution of Negroes do

not disclose the race of the victim. There is information

in the records on file of the only two cases resulting in

execution of white persons from which the inference may

reasonably be drawn that the victim was white (1la-13a).

As of March 17, 1965, eighteen persons were committed

to Kilby Prison in Alabama awaiting execution, of whom

eleven were Negroes. Both of the men under sentence for

rape were Negroes convicted of raping white women (13a-

14a). At the time the petition was filed the only other

cases of defendants known to be presently under sentence

of death for rape were three Negro men separately tried

and convicted for rape of.a white woman in Etowah County,

Alabama (13a).

The gtoss disparity shown between the proportion of

Negroes in the population and the proportion of Negroes

sentenced to death and executed for the crime of rape is

the result of a racially discriminatory system of justice

and is not explainable by other factors reasonably related

to a rational system of imposing sentence. Negroes have

been sentenced to death for a crime which, if committed by

persons of the white race, would not have resulted in im-

position of the death penalty (14a).

Petitioner offered to prove that race is the sole explana-

tion for this disproportion by reference to judicial records

and testimony of attorneys in rape cases in all counties of

Alabama, or a representative sample of Alabama counties.

He sought “a full hearing with opportunity to prove his

allegations with the benefit of compulsory process of wit-

nesses, production of records, examination and cross-exami-

nation of witnesses,” and alleged that “proper development

of this fundamental issue of constitutional law requires an

evidentiary hearing with the full opportunity for full and

effective preparation” (14a).

Cruel and Unusual Punishment

Petitioner alleged that he was deprived of Eighth and

Fourteenth Amendments rights in that (1) he was sen-

tenced to death for the crime of rape without consideration

of aggravating or mitigating circumstances; and (2) on its

face and as applied Ala. Code Ann. Title 14, §395 prescribes

cruel and unusual punishment for the reason that it pro-

vides for a jury verdict which simultaneously determines

guilt and fixes sentence at death without permitting separate

consideration of guilt and sentence (4a-5a).‘

Capital punishment is retained for the crime of rape in

only 17 states and 4 countries. Petitioner alleged that

imposition of such a penalty for rape violates evolving

standards of decency which are almost universally accepted.

The taking of human life to protect a value other than

human life is inconsistent with the constitutional prescrip-

tion against punishments which are greatly dispropor-

tionate to the offense charged. Permissible aims of punish-

ment, such as deterrence, isolation, and rehabilitation can be

achieved as effectively by punishing rape less severely than

by death and this penalty constitutes unnecesary cruelty

(15a-16a).

Exclusion of Women From Jury Service

Petitioner was indicted, tried and convicted by a jury

selected pursuant to Ala. Code Ann. Tit. 30 §21 which pro-

vides that women are ineligible for service on grand and

4 In addition, petitioner alleged that he was deprived of the opportunity

to present evidence in mitigation without taking the stand in his own

defense and forfeiting the privilege against self incrimination (15a).

petit juries in violation of his rights under the Fourteenth

Amendment (5a, 6a, 17a).

How the Federal Questions Were Raised and

Decided Below

Before his trial in the Circuit Court of Talladega County,

petitioner made motions raising the issue of racial dis-

crimination in violation of his Fourteenth Amendment

rights in the selection of persons for the jury roll, the grand

jury venire, the grand jury, the petit jury venire and the

petit jury as sworn. These motions were denied by the

trial court and denial was affirmed by the Supreme Court

of Alabama, 275 Ala. 508, 156 So. 2d 368 (1963). On certio-

rari, this Court affirmed, 380 U. S. 202, rehearing denied,

381 U. S. 921 (1965), on the ground that petitioner had

failed to prove racial discrimination in the selection of the

venires or of trial jury panels in violation of the Four-

teenth Amendment, but indicated additional evidence might

show systematic misuse of peremptory strikes in violation

of the Constitution.

In affirming petitioner’s conviction, the Supreme Court

of Alabama also found (156 So. 2d at 378) that the circuit

solicitor had not violated Alabama law and commented on

the failure of petitioner to testify when during summation

to the jury he stated:

Gentlemen, do you think we have proved these three

elements? I submit to you that it is not denied the

charge of rape. We have proved it for you, gentlemen,

beyond a reasonable doubt that this prosecution wit-

ness was raped. Now the only question that the defen-

dant has raised here by his attorneys is the question

of identify (sic).

Subsequent to this Court’s affirmance of the judgment

of the Supreme Court of Alabama petitioner filed in that

court a petition for leave to file petition for writ of error

coram nobis in the Circuit Court of Talladega County

following recognized post-conviction procedure under Ala-

bama law. After oral argument, the petition was denied

without opinion by the Supreme Court of Alabama, June

25, 1965 (1a).

The coram nobis petition alleged deprivation of peti-

tioner’s rights under the Eighth Amendment and the due

process and equal protection clauses of the Fourteenth

Amendment to the Constitution by reason of:

(a) systematic and arbitrary exclusion of Negroes from

jury service as a result of a systematic practice of the cir-

cuit solicitor, who always struck Negroes from the petit

jury venire or sought or entered into agreements with de-

fense counsel so that all Negroes would be struck;

(b) argument of the circuit solicitor before the jury

which unfairly commented on petitioner’s failure to take

the stand in his own defense;

which aroused racial prejudice and inflamed the minds of

the jurors;

(d) arbitrary and discriminatory imposition of the pen-

alty of death against Negroes charged with the crime of

rape against white women and not imposing the same pen-

alty against white men charged with rape in similar circum-

stances ;

(e) determination of sentence by a jury which had un-

limited, undirected and unreviewable discretion in choice

of sentence ;

(f) a jury verdict which simultaneously determined peti-

tioner’s guilt and fixed his sentence at death and did not

permit separate consideration of thé issues of guilt and

sentence ;

(g) sentence of death for the crime of rape without con-

sideration 6f aggravating or mitigating circumstances pur-

suant to Title 14, §395, Ala. Code Ann., which statute on

its face and as applied prescribes the imposition of cruel

and unusual punishment;

(h) total exclusion of women from the jury which tried,

convicted and sentenced petitioner.

In support of these allegations, petitioner set forth facts

appearing on the record of his trial, and the records and

files of the Supreme Court of Alabama and reports of

agencies of the United States. Attached to the petitions

were affidavits which attested to the accuracy of those alle-

gations founded on public records and government reports.

Certain of the allegations raised questions of fact as to

which petitioner requested an evidentiary hearing and the

opportunity to present proof.

Reasons for Granting the Writ

Petitioner Adequately Alleged In His Petition For

Writ Of Error Coram Nobis Below That His Conviction

Deprived Him Of Due Process Of Law And Equal Pro-

tection Of The Laws As Guaranteed By The Fourteenth

Amendment To The Constitution Of The United States

Because The Prosecutor Systematically Struck Negroes

From Petit Jury Venires.

In its earlier opinion in this case, the Court implied’

that persistent use by a prosecutor of peremptory chal-

lenges to totally exclude Negroes from petit juries would

constitute a violation of the Fourteenth Amendent, saying

(380 U. S. 223-24):

[When the prosecutor in a county, in case after

case, whatever the circumstances, whatever the crime

and whoever the defendant or the victim may be, is

responsible for the removal of Negroes who have been

selected as qualified jurors by the jury commissioners

and who have survived challenges for cause, with the

result that no Negroes ever serve on petit juries, the

Fourteenth Amendment claim takes on added signif-

icance. Cf. Yick Wo v. Hopkins, 118 U. S. 356. In

these circumstances, giving even the widest leeway

to the operation of irrational but trial-related suspi-

cious and antagonisms, it would appear that the pur-

poses of the peremptory challenge are being perverted.

If the State has not seen fit to leave a single Negro

on any jury in a criminal case, the presumption pro-

> Petitioner was not alone in reading this implication. See Mr. Justice

Harian’s concurrence (380 U. S. at 228).

tecting the prosecutor may well be overcome. Such

proof might support a reasonable inference that Ne-

groes are excluded from juries for reasons wholly

unrelated to the outcome of the particular case on

trial and that the peremptory system is being used

to deny the Negro the same right and opportunity to

participate in the administration of justice enjoyed

by the white population. These ends the peremptory ~

challenge is not designed to facilitate or justify.

Petitioner asks the Court to now make explicit what

it suggested earlier. Faced with this Court’s holding that

the record before it was insufficient to support petitioner’s

constitutional claims, petitioner attempted below to docu-

ment the prosecutor’s abuse of the peremptory challenge

system.’ The court below refused to permit such a showing,

necessarily holding that petitioner’s allegations in his coram

nobis petition did not state a federal claim.’ Petitioner

contends the contrary.

The petition alleged (3a, 6a):

Petitioner, who is a Negro, was deprived of due

process of law and equal protection of the laws as

6 Petitioner averred that he was unable to offer conclusive evidence in

affidavit form, since only through a full evidentiary hearing, featuring the

testimony of the circuit solicitor, could he prove his federal elaim (6a).

7 Writ of error coram nobis is available in Alabama as a (ear ee

reniedy for the hearing and determination of claimed denials of

constitutional rights. Ez parte Hamilton, 271 Ala. 88, 122 So. py 602

(1960), rev wen, See. ©. Sh eee ee eee eae = Hamilton v.

State, 273 Ala. 504, 142 So. 2d 868 (1962); Brown v. State, tgs 353,

170 So. 2d 504 (1965). Where conviction has been appealed to

preme Court of Alabama and affirmed, a petition for writ of error coram

nobis may not be filed in the trial court without leave by the

Supreme Court of Alabama. See, eg, Ez parte Williams, 268 Ala. 535,

108 So. 2d 454 (1959), cert. den. 359 'D. S. 1004. Thus, Swain petitioned

the Alabama Supreme Court for leave to file a coram nobis petition in

the trial court.

guaranteed by the Fourteenth Amendment to the Con-

stitution of the United States by reason of systematic

and arbitrary exclusion of Negroes from service on

petit juries in the Circuit Court of Talladega County,

as the result of a consistent and unvarying practice

of the Circuit Solicitor, who during a period of twelve

years always atruck Negroes from the petit jury venire

and sought or entered into agreements with defense

counsel so that all Negroes would be struck at the

outset of the jury selection procedure.

No Negro served on a petit jury in Talladega County

between 1950 and the date of petitioner’s trial in 1962

in either a civil or criminal case. Petitioner offers to

prove that the Circuit Solicitor of Talladega County

was responsible for the total absence of Negroes on

petit juries in criminal cases in that he consistently

struck all Negroes remaining on the venire if he was

unable to obtain the agreement of defense counsel

to the elimination of Negro venireman.

Surely these allegations were sufficient to support proof

of the kind required by this Court, viz., proof to “show

the prosecutor’s systematic use of peremptory challenges

against Negroes over a period of time” (380 U. S. at 227).

This proof, erroneously disallowed below, would document

a violation of the Fourteenth Amendment.

In an unbroken line of cases since 1880, this Court

has consistently held that a state cannot systematically

exclude persons from juries because of their race. Strauder

v. West Virginia, 100 U. S. 303; Ex parte Virginia, 100

U. S. 339; Neal v. Delaware, 103 U. S. 370; Gibson v.

Mississippi, 162 U. S. 565; Carter v. Texas, 177 U.S. 442;

Rogers v. Alabama, 192 U. S. 226; Martin v. Texas, 200

ea nero

U. S. 316; Norris v. Alabama, 294 U. 8S. 587; Hale v. Ken-

tucky, 303 U. 8. 613; Pierre v. Louisiana, 306 U. S. 354;

Smith v. Texas, 311 U. 8. 128; Hill v. Texas, 316 U.S. 400;

Akus v. Texas, 347 U. 8. 475; Reece v. Georgia, 350 U.S.

85; Hubanks v. Louisiana, 356 U. S. 584 and Arnold v.

North Carolina, 376 U. 8S. 773. Whether by statute or by

administrative action, overtly or covertly, the unlawful

discrimination has been flushed out and condemned. “If

there has been discrimination, whether accomplished in-

geniously or ingenuously, the conviction cannot stand”

Smith v. Texas, 311 U. 8. 128, 132. Abuse of the peremp-

tory challenge system presents systematic exclusion of

Negroes from juries in a somewhat altered form; never-

theless, the discrimination is substantial and poses the

same danger to “basic concepts <2 a democratic society

and a representative government.” Smith v. Texas, 311

U. S. 128, 130. The decisions of this Court do not say

that Negroes may be systematically excluded by state ac-

tion from jury service as long as they are called for jury

service. The constitutional duty of state officers is clear

and unequivocal: “not to pursue a course of conduct in

the administration of their office which would operate to

discriminate in the selection of jurors on racial grounds.”

Hill v. Texas, 316 U. S. 400, 404; see also Hamilton v.

Alabama, 376 U. S. 650; Napue v. Illinois, 360 U. S. 204;

Anderson v. Martm, 375 U. S. 399. The equal protection

clause demands no less than recognition that Negroes may

not be systematically excluded by the state from jury ser-

vice simpliciter. Carter v. Texas, 177 U. S. 442, 447;

Norris v. Alabama, 294 U. S. 587, 589; Patton v. Missis-

sippi, 332 U. S. 463, 466; Hernandez v. Tezas, 347 U. S.

475, 479; and Eubanks v. Louisiana, 356 U. S. 584, 585, 587.

To permit the insulation of abuses of peremptory chal-

lenges from judicial scrutiny would be an exaltation of

form over substance so mischievous as to seriously weaken

the administration of justice in this country; it would

encourage state officials to accomplish by indirection what

they have been carefully taught by this Court over the last

85 years is forbidden by the equal protection clause of the

Fourteenth Amendment.

By denying the coram nobis petition, the Supreme Court

of Alabama failed to understand this Court’s opinion in

Swain v. Alabama, supra, which expressly provides for

petitioner to seek relief if he proves systematic Negro

exclusion by means of the prosecutor’s peremptory strikes.

If the Alabama Supreme Court misreads this Court’s

opinion in Swam, supra, there is every reason to expect

that a United States District Court on habeas corpus may

do likewise. Thus, this Court should grant certiorari to

free the matter from doubt rather than remitting petitioner

to an uncertain and probably futile habeas forum.

Petitioner Was Denied Rights Under The Constitu-

tion When (A) Denied The Opportunity To Offer

Proof Of Racial Application Of The Death Penalty In

Alabama And (B) The Jury Which Convicted And

Sentenced Him Had Unfettered Discretion To Impose

Capital Punishment For All Offenses Of Rape—In The

Absence of Aggravating Circumstances, Permitting

Cruel And Unusual Punishment.

A. Petitioner’s Equal Protection Contention Which The Court

Below Wrongly Refused To Permit Him To Establish

Presents An Important Question For Consideration By

This Court On Certiorari.

Seventeen American States retain capital punishment

for rape. Nevada permits imposition of the penalty only

if the offense is committed with extreme violence and

great bodily injury to the victim;*® the remaining sixteen

jurisdictions—which allow their juries absolute discretion

to punish any rape th—are all southern or border

states. The federal, jurisdiction and the District of

8 Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated as-

sault with intent to rape).

* The following sections punish rape or carnal knowledge unless other-

wise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958) ;

Ark. Stat. Ann. §§41-3403, 432153 (1964 Repl. Vols.) ; see also §41-3405

(administering potion with intent to rape) ; §41-3411 (forcing marriage) ;

Fla. Stat. Ann. §794.01 (1964 Cum. Supp.); Ga. Code Ann. §§26-1302,

26-1304 (1963 Cum. Supp.); Ky. Rev. Stat. Ann. §435.090 (1963); La.

Rev. Stat. Ann. §14:42 (1950) (called aggravated rape but slight force

is sufficient to constitute offense; also includes carnal knowledge); Md.

Ann. Code, art. 27, §§461, 462 (1957) ; see also art. 27, §12 (assault with

intent to rape); Miss. Code Ann. §2358 (Reecomp. Vol. 1956); Vernon’s

Mo. Stat. Ann. §559.260 (1953); N. C. Gen. Stat. §14-21 (Recomp. Vol.

1953) ; Okla. Stat. Ann., tit. 21, §§1111, 1114, 11165 (1958); S. C. Code

Ann. §§16-72, 16-80 (1962) (includes assault with attempt to rape as

Columbia, with its own strong southern traditions, also

allow the death penalty for rape."

Between 1930 and 1962, the year in which petitioner

was sentenced to die, 446 person were executed for rape

in the United States. Of these, 399 were Negroes, 45

were whites, and 2 were Indians. All were executed in

Southern or border States or the District. The per-

centages—89.5% Negro, 10.1% white—are revealing when

compared to similar racial percentages of persons executed

during the same years for murder and other capital

offenses. Of the total number of persons executed in the

United States, 1930-1962, for. murder, 49.1% were Negro;

49.7% were white. For other capital offenses, 45.6%

were Negro; 54.4% were white. Louisiana, Mississippi,

Oklahoma, Virginia, West Virginia and the District of

Columbia never executed a white man for rape during

these years. Together they executed 66 Negroes. Arkan-

sas, Delaware, Florida, Kentucky and Missouri each

executed one white man for rapé between 1930 and 1962.

Together they executed 71 Negroes. Putting aside Texas

(which executed 13 whites and 66 Negroes), sixteen

Southern and border States and the District of Columbia

between 1930 and 1962 executed 30 whites and 333 Negroes

for rape; a ratio of better than one to eleven. Clearly,

unless the incidence of rape by Negroes is many times

that of rape by whites, capital punishment for rape

”&

well as rape and carnal knowledge) ; Tenn. Code Ann. §§39-3702, 39-3703,

39-3704, 39-3705 (1955); Tex. Pen. Code Ann., arts. 1183, 1189 (1961);

Va. Code Ann. §18.1-44 (Repl. Vol. 1960); see also §18.1-16 (attempted

rape).

1018 U. S. C. §2031 (1964); 10 U. S. C. $920 (1964); D. C. Code Ann.

§22-2801 (1961).

survives in the twentieth century principally as an instru-

ment of racial repression.”

11 The figures in this paragraph are taken from United States Depart-

ment of Justice, Bureau of Prisons, National Prisoner Statistics, No. 32;

Executions, 1962 (April 1963). Table 1 thereof shows the following

executions under civil authority in the United States between 1930 and

1962:

MURDER

Total White

Number ................ 3298 1640

Per cent. .............. 100.0 49.7

RaPE

Total White

BE Sc sincinsiciann 446 45

Per Cent .............. 100.0 10.1

OTHER OFFENSES

Total White

Number ................ ~ 68 37

Per Cant .............. 100.0 54.4

Other

0.0

Table 2 thereof shows the following executions under civil authority in

the United States between 1930 and 1962, for the offense of rape, by State:

White

errr rr rere

Maryland

Mississippi

Missouri

Diatiseaetherewecuun

S| Nexen, Bahk toBBue

wloscscooonmnoccoococoococc]

If this be so—if the racially unequal results in these

States derive from any cause which takes account of

race as a factor in meting out punishment—a Negro

punished by death is denied, in the most radical sense,

the equal protection of the laws.’* One of the cardinal

purposes of the Fourteenth Amendment was the elimina-

tion of racially discriminatory criminal sentencing. The

first Civil Rights Act of April 9, 1866, ch. 31, § 1, 14 Stat.

27, declared the Negroes citizens of the United States

and guaranteed that “such citizens, of every race and

color ,... shall be subject to like punishment, pains, and

penalties [as white citizens], and to none other, any law,

statute, ordinance, regulation, or custom, to the contrary

notwithstanding.” The Fourteenth Amendment was de-

signed to elevate the Civil Rights Act of 1866 to constitu-

tional stature. See e.g., tenBroek, Thirteenth Amendment

to the Constitution of the United States, 39 Calif. L. Rev.

171 (1951); Fairman, Does the Fourteenth Amendment

Incorporate the Bul of Rights, 2 Stan. L. Rev. 5 (1949).

The Enforcement Act of May 31, 1870, ch. 114, §§ 16, 18,

16 Stat. 140, 144, implemented the Amendment by reenact-

ing the 1866 act and extending its protection to all persons.

This explicit statutory prohibition of racially discrimina-

12 The contention that racially discriminatory application of the death

penalty in rape cases denies equal protection has been raised in a number

of cases now pending in state and federal courts, including this Court.

See, e.g., Maxwell v. Stephens, —— F. 2d —— (8th Cir., decided June 30,

1965), petition for Writ of Certiorari pending No. 429, October Term,

1965; Mitchell v. Stephens, 232 F. Supp. 497, 507 (E. D. Ark. 1964),

appeal pending; Moorer v. MacDougall, U. 8S. Dist. Ct., E. D. 8. C., No.

AC-1583, petition for writ of habeas corpus pending; Aaron v. Holman,

U. S. Dist. Ct., M. D. Ala., C. A. No. 2170-N, proceedings on petition for

writ of habeas corpus stayed pending exhaustion of state remedies July

2, 1965; Alabama Vv. Billingsley, Cr. Ct. Etowah County, No. 1159, motion

for new trial and motion for reduction of sentence pending; Craig v.

Florida, Sup. Ct. Fla., No. 34,101, appeal from denial of motion for re-

duction of sentence pending; Louisiana ex rel. Scott v. Hanchey, 20th Jud.

Dist. Ct., Parish of West Feliciana, petition for habeas corpus pending.

tory sentencing survives today as Rev. Stat. §1977 (1875),

42 U. S. C. § 1981 (1964).

For purposes of the prohibition, it is of course im-

material whether a State writes on the face of its statute

books: “Rape shall be punishable by imprisonment .. .,

except that rape by a Negro of a white woman, or any

other aggravated and atrocious rape, shall be punishable

by death by electrocution,” or whether the State’s juries

read a facially color-blind statute to draw the same racial

line. Discriminatory application of a statute fair upon

its face is more difficult to prove, but no less violates the

State’s obligation to afford all persons within its juris-

diction the equal protection of the laws. E.g., Yick Wo v.

Hopkins, 118 U. 8S. 356 (1886); Niemotko v. Maryland,

340 U. S. 268 (1951) (alternative ground); Fowler v.

Rhode Island, 345 U. S. 67 (1953); Hamilton v. Alabama,

376 U. S. 650 (1964) (per curiam). And it does not

matter that the discrimination is worked by a number of

separate juries functioning independently of each other,

rather than by a single state official. However, it may

divide responsibility internally, the State is federally

obligated to assure the equal application of its laws."

This Court has long sustained claims of discriminatory

13 Tt is also immaterial whether a State imposes different penalties for

classes of cases defined in terms of race, or whether it imposes a penalty

of death in all cases of a given crime, subject to the option of the jury

in some racially defined sub-class of the cases. The Fourteenth Amend-

ment’s obligation of equality extends not only to those “rights” which a

State is federally compelled to give its citizens, but also to any benefits

the State may choose to give any class of them, however gratuitously.

Brown Vv. Board of Education, 347 U. S. 483 (1954); Watson v. City of

Memphis, 373 U. 8. 526 (1963); McLaughlin v. Florida, 379 U. 8. 184.

'* Execution by the State of the death sentence which it has given juries

discretion to impose clearly provides that “interplay of governmental and

private action,” N.A.A.C.P. v. Alabama, 357 U. S. 449, 463 (1958), quoted

in Anderson v. Martin, 375 U. S. 399, 403 (1964), which makes the State

responsible for the discrimination. Shelley v. Kraemer, 334 U.S. 1 (1948).

jury exclusion upon a showing of exclusion continuing

during an extended period of years, without inquiry

whether the same jury commissioners served throughout

the period. See e.g., Neal v. Delaware, 103 U. S. 370

(1881); Bush v. Kentucky, 107 U.S. 110 (1882) ; Hernandez

v. Texas, 347 U. S. 475 (1954). Congress, when it enacted

the 1866 Civil Rights Act knowing that “In some com-

munities in the South a custom prevails by which different

punishment is inflicted upon the blacks from that meted

out to whites for the same offense,”’® intended precisely

by the Act, and subsequently by the Fourteenth Amend-

ment, to disallow such “custom” as it operated through

the sentences imposed by particular judges and juries.’*

Because Alabama has foreclosed petitioner’s opportunity

to establish racially discriminatory application of the

death penalty by denial of his coram nobis petition, the

only question is whether his allegations are reasonable

and sufficient if true to state a constitutional violation.

Pennsylvania ex rel. Herman v. Clandy, 350 U. S. 116;

Coleman v. Alabama, 377 U.S. 129, 133; Taylor v. Alabama,

335 U. S. 252.

Examination of petitioner’s coram nobis petition reveals

distinct, precise and positive allegations which place

beyond question petitioner’s reliance on a_ substantial

claim under the equal protection clause. Petitioner is a

Negro:

Who is charged with the rape of a white woman

and sentenced to death for that crime in the State

15 Cong. Globe, 39th Cong., Ist Sess. 1758 (4/4/1866) (remarks of

Senator Trumbull, who introduced, reported and managed the bill which

became the act).

16 See the text of the act supra; see also, e.g., Cong. Globe, 39th Cong.,

lst Sess. 475 (1/29/1866), 1759 (4/4/1866) (remarks of Senator Trum-

bull).

of Alabama which State, its subdivisions, instrumen-

talities, officers and agents, through policy, practice,

custom and usage, arbitrarily and discriminatorily

imposes the death penalty against Negroes charged

with the crime of rape against white women but does

not impose this same penalty against white men

charged with the crime of rape in similar circum-

stances (4a).

United States Census statistics show that Alabama’s

population from 1930 to the present consisted of a non-

white population ranging from 30.1% to 35.7%. Between

1930 and 1964 the State executed 134 persons of whom

107 or 79.8% were Negroes and 27 or 20.2% were white.

As of March 17, 1965, 18 persons were committed to Kilby

Prison awaiting execution of whom 11 were Negroes and

seven were white. During this 24 year period, 1930-1964,

the State executed 22 persons for the crime of rape of

whom 20 or 90.9% were Negroes and two or 9.1% were

white. Two persons presently committed to Kilby Prison

awaiting execution for the crime of rape are both Negroes.

To the extent records on file in the Supreme Court of

Alabama, involving execution for rape indicate the race

of the victim they show that for the crime of rape, the

victim of the crime was a white woman in every case.”

17 Eleven of the cases reveal the race of the victim expressly. In five

other cases in which Negroes were executed for the crime of rape, infor-

mation in the record leads to a fair inference that the victim was white.

In five of the cases resulting in the execution of Negroes for the crime of

rape, the transcript of trial does not disclose the race of the victim. In

the only two cases resulting in the execution of white persons for the crime

of rape, there is information in the record on file in the Supreme Court

of Alabama from which the inference may be fairly drawn that the victim

of the crime was white. The docket numbers, dates of decision or cita-

tion of these cases are set forth in the petition. The two men presently

awaiting execution in Kilby Prison both have been convicted of the rape

of a white woman. One is petitioner in this case, and the other is

The petition expressly alleges that “the gross disparity

shown ‘above between the proportion of Negroes in the

population and the proportion of Negroes sentenced to

death and executed for the crime of rape is the result

of a racially discriminatory system of justice and is not

explainable of other factors reasonably related to the ra-

tional system of imposing sentence” and that “Negroes

have been sentenced to death for crimes which if com-

mitted by persons of the white race would not have re-

sulted in imposition of the death penalty” (14a). Peti-

tioner offered to prove that race is the sole explanation

for the grossly disproportionate number of Negro execu-

tions for rape by reference to judicial records and the

testimony of attorneys in rape cases in all counties of

Alabama or a representative sample of Alabama counties

(14a), and sought a “hearing with opportunity to prove

his allegations with the benefit of compulsory process of

witnesses, production of records, examination and cross-

examination of witnesses” (14a).

Petitioner should be accorded an opportunity to estab-

lish these substantial allegations. Several considerations

support the holding.

First, the hypothesis of racial discrimination is par-

ticularly likely in view of the coincidence between the

Alabama figures and those of the other jurisdictions—

all southern—which have executed persons for rape dur-

Drewey Aaron, Jr., a Negro also convicted of the rape of a white woman.

See Aaron v. State of Alabama, 273 Ala. 337, 139 So. 2d 309, 1961. In

the only other case known to the petitioner of defendants presently under

sentence of death for the crime of rape in Alabama, three men were sep-

arately tried, convicted and sentenced to death for the crime of rape

against a white woman in Etowah County. Motions for new trial and for

reduction of sentence are pending in the cases of Alabama Vv. Billingsley,

Jr., Cir. Ct., No. 743; Alabama v. Butler, Cir, Ct., No. 744; Alabama v.

Liddell, Cir. Ct., No. 745.

ing the past thirty years. For all jurisdictions, the Negro-

white ratio is nine to one—although for other crimes

than rape it is about one to one. Studies and observa-

tions by students of the criminal process tend to support

the hypothesis of discrimination. E.g. Bullock, Significance

of the Racial Factor in the Length of Prison Sentences,

52 J. Crim. L., Crim. & Pol. Sci. 411 (1961); Wolfgang,

Kelly & Nolde, Comparison of the Executed and the

Commuted Among Admissions to Death Row, 53 J. Crim.

L., Crim. & Pol. Sci. 301 (1962); Hartung, Trends in the

Use of Capital Punishment, 284 Annals 8, 14-17 (1952);

Weihofen, The Urge to Punish 164-165 (1956).

Second, Alabama Law has long accorded differential

treatment in sexual matters on the basis of race. The

Alabama Constitution prohibits the legislature from per-

mitting interracial marriages. Ala. Const. 4 102. Marriage,

adultery and fornication between Negroes and whites are

felonies and an officer issuing a license for an interracial

marriage commits a misdemeanor. Ala. Code Ann. Tit.

14, § 360-61. In addition, Alabama public policy still sup-

ports segregation of,the races and the statute books of

the state still carry provisions which enforce segregation.

See Ala. Code Ann. Tit. 48, §§ 186, 196, 464 (intrastate

buses); Tit. 46, § 189 (hospitals); Tit. 45, § 248 (schools

for the mentally deficient) ; Tit. 51, § 244 (poll books must

indicate race). See also Lee v. Macon County Board of

Education, 231 F. Supp. 743 (M. D. Ala. 1964); Carr v.

Montgomery County Board of Education, 232 F. Supp. 715

(M. D. Ala. 1964).

Third, the absolute discretion which Alabama law gives

jurors to decide between life and death, undirected by any

rational standards for making that decision, see part

II(B), mfra, invites the influence of arbitrary and dis-

criminatory considerations. This Court has long been con-

cerned with a vagueness of criminal statutes which “licenses

the jury to create its own standard in each case.” ** Hern-

don v. Lowry, 301 U. S. 242, 263 (1937), See, e.g., Smith

v. Cahoon, 283 U. S. 553 (1931); Cline v. Frink Dairy Co.,

274 U.S. 445 (1927) ; Connally v. General Construction Co.,

269 U. S. 385 (1926); Winters v. New York, 333 U.S. 507

(1948). The vice of such statutes is not alone their failure

to give fair warning of prohibited conduct, but the breadth

of room they leave for jury caprice and suasion by imper-

missible considerations, N.A.A.C.P. v. Button, 371 U. S.

415, 432-433 (1963); Freedman v. Maryland, 380 U. S. 51,

56 (1965); Lewis, the Sit-In Cases: Great Expectations,

[1963] Supreme Court Review 101, 110; Note 109 U. Pa.

L. Rev. 67, 90 (1960), including racial considerations, see

Louisiana v. Umted States, 380 U. S. 145 (1965); Dom-

browski v. Pfister, 380 U. S. 479 (1965) ; Cox v. Louisiana,

379 U. S. 536 (1965). Unlimited sentencing discretion in

a capital jury presents this vice in the extreme. To para-

phrase Burstyn v. Wilson, 343 U.S. 495, 505 (1952): “Un-

der such a standard the most careful and tolerant [lay

juror] . . . would find it virtually impossible to avoid

favoring one [race] .. . over another.”

Petitioner requests the Court to grant certiorari, that

it may review and reverse the judgment of the Supreme

Court of Alabama which denies petitioner’s right to demon-

18 The petition alleges deprivation of petitioner’s rights in that (a) his

sentence to death was determined by a jury which had unlimited, un-

directed and unreviewable discretion in choice of sentence to impose any

penalty between a term of 10 years to death, (b) no rational, fair, or

uniform standards were set by the statute and the trial judge gave the

jury no directions as to choosing among allowable sentences permitting the

jury to consider discriminatory racial factors and (¢c) that the jury’s ver-

dict simultaneously determined his guilt and fixed the sentence at death

depriving petitioner of the opportunity to present evidence in mitigation

without taking the stand in his own defense and forfeiting the privilege

of himself against self incrimination (4a-15a).

es et el

strate that he had been denied equal treatment in the most

grievous penalty known to law. He seeks only a fair oppor-

tunity to demonstrate that his present incarceration under

sentence of death is the product of a long continued and

continuing system of discriminatory administration of jus-

tice operating in every gap of discretion left by the state’s

written law to deny him equal treatment and subject him

to extreme punishment which in practice is virtually never

applied to the white man but is reserved as the ultimate

weapon of terror to hold the Negro in his place. Peti-

tioner asks this Court to consider whether he has the right

to demonstrate discrimination because of the Fourteenth

Amendment’s overriding purpose to secure racial equality

and because “racial classifications [are] ‘constitutionally

suspect’... and subject to the ‘most rigid serutiny.’...”

MacLaughlwm v. Florida, 379 U. S. 184, 192 (1964).

B. The Court Should Grant Certiorari To Consider Peti-

tioner’s Contention That His Sentence Is Unconstitutional

Under The Eighth And Fourteenth Amendments.

Petitioner alleged that he was unconstitutionally sen-

tenced without consideration of aggravating or mitigating

circumstances, pursuant to Title 14, §395 of the Alabama

Code, which statute on its face and as applied prescribes

the imposition of cruel and unusual punishment in vio-

lation of the Fourteenth Amendment (4a, 15a). This ques-

tion, which three Justices of the Court thought deserving

of certiorari in Rudolph v. Alabama, 375 U. S. 889 (1963),

has been deemed by both the Fourth and Eighth circuits

as one which “must be for the Supreme Court in the first

instance.” Maxwell v./ Stephens, F. 2d (8th Cir.

decided June 30, 1965) petition for certiorari pending, No.

429, October Term, 1965. The Fourth Circuit has taken

the same view. Ralph v. Pepersack, 335 F. 2d 128, 141

(4th Cir. 1964). Petitioner respectfully requests the judg-

ment of the Court on the issue.

The question posed is not whether on any rational view

which one might take of the purpose of criminal punish-

ment, the defendant’s conduct as the jury might have found

it at its worst could support a death sentence consistent

with civilized standards for the administration of criminal

law. For here the issue of penalty was submitted to the

jury in their unlimited discretion under Alabama pro-

cedure. Their attention was directed to none of the pur-

poses of criminal punishment, nor to any aspect or aspects

of the defendant’s conduct as they related to imposition

of sentence.

The charge of the trial judge to the jury which con-

victed petitioner set forth the elements of the crime of rape

and the evidence which must be found to convict but as

to sentence merely stated :

As I have told you, the punishment for the crime of

rape is either death or imprisonment in the peniten-

tiary for not less than 10 years. The limit is on the

minimum sentence and not on the maximum.

The jury was not invited to consider the extent of physical

harm to the prosecutrix, the moral heinousness of the de-

fendants’ acts, his susceptibility or, lack of susceptibility

to reformation, the extent of the detrrent effect of killing

the defendant “pour decourager les autres.” Cf. Packer,

Making the Punishment Fit the Crime, 77 Harv. L. Rev.

1071 (1964). They were permitted to choose between life

and death upon conviction for any reason, rational or ir-

rational, or for no reason at all: at a whim, a vague

19 See p. 361 certified record on file with the Court in Swain v. Alabama,

380 U. S. 202.

caprice, or because of the color of petitioner’s skin if that

did not please them. In making the determination to im-

pose the death sentence, they acted wilfully and unreview-

ably, without standards and without direction. Nothing as-

sured that there would be the slightest thread of connection

between the sentence they exacted and any reasonable jus-

tification for exacting it. Cf. Skinner v. Oklahoma, 316

U. S. 535 (1942). A judgment so unconfined, so essentially

erratic, is per se cruel and unusual because it is purposeless,

lacking in any relationship by which its fitness to the of-

fense, or to the offender or to any legitimate social pur-

pose may be tested. It is cruel not only because it is

extreme but because it is wanton; and unusual not only

because it is rare, but because the decision to remove the

defendant from the ordinary, penological regime is arbi-

trary. To concede the complexity and interrelation of sen-

tencing goals, see Packer, supra, is no reason to sustain

a statute which ignores them all. It is futile to put for-

ward justifications for a death so inflicted; there is no

assurance that the infliction responds to the justification

or will conform to it in operation. Inevitably under such

a sentencing regime, capital punishment in those few, ar-

bitrarily selected cases where it is applied both is “ ‘dis-

proportioned to the offenses charged’” and constitutes

“‘ynnecessary cruelty.’” Rudolph v. Alabama, supra, 375

U. S. at 891.”

20The United States Department of Justice has taken the following

position on continued imposition of the death penalty: “We favor the

abolition of the death penalty. Modern penology with its correctional and

rehabilitation skills affords greater protection to society than the death

penalty which is inconsistent with its goals. This Nation is too great in

its resources and too good in its purposes to engage in the light of present

understanding in the deliberate taking of human life as either a punish-

ment or a deterrent to domestic crime.” Letter of Deputy Attorney Gen-

eral Ramsey Clark to the Honorable John L. MeMillan, Chairman, District

of Columbia Committee, House of Representatives, July 23, 1965, reported

in New York Times, July 24, 1965, p. 1, col. 5.

Petitioner Was Denied Rights Under The Fifth And

Fourteenth Amendments When The Circuit Solicitor

Was Permitted To Comment On His Failure To Take

The Stand.

The constitutional privilege against self-incrimination,

which is available in state as well as federal proceedings,

Malloy v. Hogan, 378 U. S. 1, includes the right of a crim-

inal defendant to be free from “comment by the prosecu-

tion on the accused’s silence or instructions by the court

that such silence is evidence of guilt.” Griffin v. California,

380 U. S. 609. In Griffin, the Court held that the standards

imposed upon federal courts and prosecutors by 18

U. S. C. §3841, prohibiting such comment, reflect “the

spirit of the Self-Incrimination Clause.” 380 U. S. at

613-614. In Wilson v. United States, 149 U. S. 60, 65 the

leading case under §3841, the Court stated: ‘Comment,

especially hostile comment, upon such failure must neces-

sarily be excluded from the jury. The minds of the jurors

can only remain unaffected from this circumstance by

excluding all reference to it.” Further, “Counsel is for-

bidden by the statute to make any comment which would

create or tend to create a presumption against the defen-

dant for his failure to testify.” 149 U.S. at 67.

During his summation to the jury, the circuit solicitor

stated :

Gentlemen, do you think we have proved these three

elements? I submit to you it is not denied, there is

not a word come from this stand that denied the

charge of rape. Now the only question that the de-

fendant has raised here by his attorneys is the ques-

tion of identify [sic]. (Tr. 354; App. p. 7a.)”"

71 Objection to these remarks was made by defendant’s counsel and

overruled. An exception was reserved (Tr. 355).

This was unfair comment on petitioner’s exercise of his

constitutional right to remain silent and rely on the pre-

sumption of innocence. The Supreme Court of Alabama,

affirming the conviction, held that the solicitor’s remarks

did not violate Alabama’s statute forbidding comment,

Ala. Code, Tit. 15, §305, because they merely stated that

the evidence was uncontradicted or undenied. Swain v.

Alabama, 275 Ala. 508, 156 So. 2d 368, 378 (1963).7* How-

ever, the solicitor did not merely state that evidence was

uncontradicted; he said that no word of denial had come

from the stand, in obvious reference to the defendant.

The comment alone is enough to invalidate petitioner’s

conviction under Griffin v. California, but it need not be

considered alone. Not content with allusion to petitioner’s

failure to testify, the solicitor proceeded to attack him as

a bootlegger without any justification in the record® and

to arouse racial antagonism before the all-white jury. His

earthy description of the crime, with its patent racial

overtones,‘ not only raises a question of elemental fair-

22 Affirmance by the Supreme Court of Alabama preceded this Court’s

decision in Malloy v. Hogan and Griffin v. California.

23 “Mr. Hollingsworth: Think what it has done to that child’s life.

When will she ever forget the day of February 7, 1962, when a bootlegger

was riding the road and decides he wants to stop and rape somebody in

that community right near the county line.

Mr. Hall: If your Honor please, we object to the use of the term ‘boot-

legger’. We don’t recall any testimony, any evidence coming from this

witness stand that this man was a bootlegger.

The Court: I’ll sustain the objection and I’ll instruct the jury not to

consider it. b

Mr. Hall: We move for a mistrial, your Honor.

The Court: I’ll overrule the motion for a mistrial.

Mr. Hall: We take exception.

Mr. Hollingsworth: The way I understand it, he said he was going to

get a load from Opelika” (Tr. 354).

24“Do you think this young lady, Jimmie Sue Butterworth, consented

to have this defendant have that rough and rugged intercourse where this —

impact against her body caused loose hairs to eome out of his privates?

You gentlemen know the way a colored person—you have seen them, you

ness of the trial, see, Viereck v. United States, 318 U. S.

236; Ross v. United States, 180 F. 2d 160 (6th Cir. 1950),

but shows that the solicitor’s remarks constituted “hostile

comment” on petitioner’s failure to testify. See Wilson v.

United States, 149 U. S. at 65.

IV.

Petitioner Was Deprived Of Due Process Of Law

And Equal Protection Of The Laws In Violation Of

The Fourteenth Amendment Because Women Were

Systematically Excluded From The Juries Which In-

dicted And Tried Him.

The grand jury which indicted petitioner and the trial

jury which convicted and sentenced him were chosen pur-

suant to Ala. Code Ann., Tit. 30, §21 which confines jury

service to males over twenty-one years of age. By exclud-

ing the female population of Talladega County from any

participation in the jury system, Alabama has discrim-

inated on the basis of sex in violation of petitioner’s Four-

teenth Amendment right to an impartial jury selected from

a cross-section of the community.

In Hoyt v. Florida, 368 U. S. 57, the Court affirmed the

conviction of a woman for second degree murder in the

face of her claim that Florida excluded women from jury

service in violation of the Fourteenth Amendment. The

Court found that Florida had not arbitrarily undertaken

have seen their hair. You know, gentlemen, it is coarse. You know that

it is rough. You know from your own experience with everyday life that

when any two forces meet each other and that there is a rubbing or bang-

ing there there are going to be hairs lost. Most of you men are married

men. You have had everyday experiences. You know from your own

knowledge that people shed hairs and they lose them, but gentlemen how

many of you if they took us out and shook our clothes would find negroid

hairs falling from our privates?” (Tr. 355-56).

to exclude women from jury service because the state

granted women an automatic exemption, subject to service

on a voluntary basis. The Chief Justice, Mr. Justice

Black and Mr. Justice Douglas concurred upon finding a

“good faith effort to have women perform jury duty with-

out discrimination on the basis of sex.” Id. at 69. The

Court expressly reserved decision of whether a state may

confine jury duty to males consistent with the Fourteenth

Amendment. Id. at p. 60. Cf. Strauder v. West Virginia,

101 U. S. 303, 310.

Alabama is one of three states which exclude women

from jury service by statute.** In the remaining states

women either serve on the same basis as men or are granted

an exemption based on their sex; of these, two states, other

than Florida, grant an exemption which is automatic, un-

less a woman volunteers for service. Hoyt, Id. at p. 62.

The Court in Hoyt recognized that the “Fourteenth Amend-

ment reaches not only exclusion of a class from jury ser-

vice based G1 race, but also any other exclusions which

‘single out’ any class of persons ‘for different treatment

not based on some reasonable classification’, Hernandez v.

Texas, 347 U. S. 475, 478.” Id. at p. 60.

The question before the Court is, therefore, whether

total exclusion of women from jury service is an arbitrary

exclusion not based on a reasonable classification. In con-

sidering this question, it is at first apparent that dic-

tum in Strauder v. West Virgina, 101 U. S. 303, 310, to

the effect that a state may constitutionally confine jury

duty to males is scant authority for exclusion of women

at the present time. In the 80 years since Strauder, the

status of women and the character of female participation

in society has been drastically altered. To name two ob-

vious examples, the right to vote and to obtain employ-

25 See Miss. Code Ann. 1942 (Recompiled Vol. 1958), §1762; South

Carolina Code 1952, §§38-52.

ment no longer may be abridged on the basis of sex. U. S.

Const. Amend. XIX(1920); 42 U. S. C. §2000(e) (2).

There is no apparent reason why women are any less

qualified to render service as jurors than men. Perhaps

the only justification for their exclusion, one may suggest,

is that women are more likely to have family responsibil-

ities which make jury serivce a hardship; but granting

the premise, the conclusion that women may be declared

ineligible for jury service as is the case in Alabama, Mis-

sissippi, and South Carolina does not follow. The regis-

tration procedure approved in Hoyt v. Florida, supra, as

well as the practice of granting an ebsolute exemption to

women which is now employed by 17 states present an

appropriate manner in which the states’ interest in miti-

gating hardships flowing from jury service may be met.

Petitioner, a male, has standing to challenge the total

exclusion of women from jury service in Alabama. First,

he is entitled to a jury impartially drawn from a cross-

section of the community. See Smith v. Texas, 311 U. S.

128. A jury system which excludes women certainly does

not represent the attitudes and points of view of the com-

munity as a whole. See Allen v. State, 137 S. E. 2d 711,

110 Ga. App. 56 (1964) (white may complain of Negro

exclusion from jury). As the Court said in Ballard v.

United States, 329 U. S. 187, 193-94:

The truth is that the two sexes are not fungible; a

community made up exclusively of one is different

from a community composed of both; the subtle in-

terplay of influence one on the other is among the

imponderables. To insulate the courtroom from either

may not in a given case make an iota of difference.

Yet a flavor, a distinct quality is lost if either sex

is &cluded. The exclusion of one may indeed make

the jury less respesentative of the community than

would be true if an economic or racial group were

excluded.

Secondly, petitioner was charged and convicted of the

crime of rape. Females certainly possess attitudes with

respect to such a crime not possessed by men. The addi-

tion of their point of view makes the jury system as a

whole more suitable to impartial evaluation of the evidence

against petitioner than a jury chosen from males exclu-

sively. This is not to suggest that the scope of the right

to an impartially selected jury entitles one accused of

crime to a jury tailored to the circumstances of the particu-

lar case. Petitioner does not here ask for a jury favor-

able to him, but contends that a jury chosen by excluding

women injures him by excluding a distinct class in the

community, one which has a perspective more likely to,

if included, help produce a jury system which renders

impartial and unbiased verdicts and sentences.

CONCLUSION

Wherefore, for the foregoing reasons, petitioner

prays that the writ of certiorari be granted.

Respectfully submitted,

JacK GREENBERG

James M. Nasairt, III

MicHaEL MELTSNER

Frank HErrron

Metvyn Zare

Suite 2030

10 Columbus Circle

New York, New York 10019

OnzeLL Bruincsiey, JR.

Perer A. Hau

1630 Fourth Avenue North

Birmingham, Alabama

AntHony G. AMSTERDAM

3400 Chestnut Street

Philadelphia, Pa.

Attorneys for Petitioner

APPENDIX

Judgment of the Supreme Court of Alabama

June 25, 1965

THE SUPREME COURT OF ALABAMA

Jupic1aL DEPARTMENT

OctoserR TERM, 1964-65

7th Div. 699

_ Ex parte:

Rosert Swain,

Petitioner.

PETITION FoR LEAVE TO Fie PETITION FoR Writ or ERRor

Coram Nosis 1n THE Circuit Court or TaLLADEGA County,

ALABAMA and PETITION FoR Stay oF EXECUTION

(Re: Robert Swain v. State)

The Petitions having been considered by the entire Court,

after argument of counsel, 5

Ir Is OnpEreEp that they are each hereby denied.

I, Richard W. Neal, Deputy Clerk of the Supreme Court

of Alabama, do hereby certify that the foregoing is a full,

true and correct copy of the instruments herewith set out

as same appears of record in said Court.

Witness my hand this 25 day of June, 1965.

/s/ Richarp W. Neat

Ricnarp W. NgEau

Deputy Clerk,

Supreme Court of Alabama

Coram Nobis Petition

IN THE SUPREME COURT OF ALABAMA

Ex Parte Rosert Swain

Petition ror LEAvE to Fite Petition ror Writ oF ERRor

Coram Nosis IN THE Circuit Court or TALLADEGA CoUNTY

Now comes Robert Swain, by his attorneys, and re-

spectfully petitions for leave to file a petition for writ

of error coram nobis in the Circuit Court of Talladega

County, and in support of said petition, petitioner alleges

as follows:

1. Petitioner was indicted and convicted for rape in

the Circuit Court of Talladega County, Alabama. He was

sentenced to death on June 12, 1962. Motion for new trial

was overruled and appeal was taken to this Court, which

affirmed the judgment of the Circuit Court on September

d, 1963, Robert Swain v. State of Alabama, Special Term

1963, 7 Div. 581, 275 Ala. 508, 156 So. 2d 368. On Sep-

tember 26, 1963, this Court overruled petitioner’s applica-

tion for rehearing. The United States Supreme Court

granted a petition for writ of certiorari on April 27, 1964,.

Swam v. Alabama, 377 U.S. 915, and the judgment of this

Court was affirmed by the United States Supreme Court

on March 8, 1965, 85 S. Ct. 824, 13 L. ed. 2d 759. On May

24, 1965, this Court ordered that the sentence of death

be carried out on July 9, 1965.

2. The judgment and proceedings in the Circuit Court

of Talladega County and on appeal to this Court appear

Coram Nobis Petition

of record in the files and minutes of this Court, and refer-

ence thereto is hereby made, and the same are asked to

be treated as a part of this petition as if fully set out

herein.

3. Petitioner respectfully shows that the judgment of

this Court and of the Circuit Court of Talladega County

were unlawfully and improperly taken against him in

that:

(a) Petitioner, who is a Negro, was deprived of due

process of law and equal protection of the laws as guar-

anteed by the Fourteenth Amendment to the Constitution

of the United States by reason of systematic and arbitrary

exclusion of Negroes from service on petit juries in the

Circuit Court of Talladega County, as the result of a

consistent and unvarying practice of the Circuit Solicitor,

who during a period of twelve years always struck Negroes

from the petit jury venire and sought or entered into

agreements with defense counsel so that all Negroes would

be struck at the outset of the jury selection procedure.

(b) Petitioner was deprived of due process of law and

the equal protection of the laws as guaranteed by the

Fifth and Fourteenth Amendments to the United States

Constitution in that the Circuit Solicitor, during his argu-

ment before the jury, unfairly commented on petitioner’s

failure to take the stand in his own defense.

the equal protection of the laws as guaranteed by the

Fourteenth Amendment to the United States Constitution

in that the Solicitor, during his summation argument be-

fore the jury, aroused racial prejudice and inflamed the

minds of the jurors.

Coram Nobis Petition

(d) Petitioner was deprived of due process of law and

the equal protection of the laws as guaranteed by the

Fourteenth Amendment to the United States Constitution

in that petitioner is a Negro who was charged with the

rape of a white woman and sentenced to death for that

crime in the State of Alabama, which State, its sub-

divisions, instrumentalities, officers, and agents through

policy, practice, custom and usage arbitrarily and dis-

criminatorily imposes the penalty of death against Negroes

charged with the crime of rape against white women, but

does not impose this same penalty against white men

charged with the crime of rape in similar circumstances.

(e) Petitioner was deprived of due process of law and

the equal protection of the laws in violation of the Four-

teenth Amendment to the United States Constitution in

that his sentence of death was determined by a jury which

pursuant to Title 14, § 395 of the Alabama Code had un-

limited, undirected and unreviewable discretion in choice

of sentence.

(f) Petitioner was deprived of due process of law and

the equal protection of the laws in violation of the Four-

teenth Amendment to the United States Constitution in

that the jury’s verdict simultaneously determined his guilt

and fixed the sentence at death, pursuant to Title 14, § 395

of the Alabama Code, which does not establish any pro-

cedure allowing separate consideration of the issues of

guilt and sentence.

(g) Petitioner was deprived of due process of law and

the equal protection of the laws in violation of the Eighth

and Fourteenth Amendments to the United States Con-

- stitution in that he was sentenced to death for the crime

of rape without consideration of aggravating or mitigat-

nee

Coram Nobis Petition

ing circumstances, pursuant to Title 14, 4 395 of the Ala-

bama Code, which statute on its face and as applied pre-

scribes the imposition of cruel and unusual punishment.

(h) Petitioner was deprived of due process of law and

the equal protection of the laws as guaranteed by the

Fourteenth Amendment to the United States Constitution

in that, on the day he was apprehended by law enferce-

ment officials, he was not informed of his right to remain

silent and to refuse to give evidence against himself, nor

was he informed of his right to confer with counsel, nor

was he provided counsel so that he might be informed of

his right to remain silent and to refuse tv give evidence

against himself; but, instead, he was rejuired against his

will and without the advice of counsel to remove his cloth-

ing and subject himself to the taking of photographs in

the nude and to the combing of his pubic hairs by the state

toxicologist, and was forced to surrender his clothing to

the custody of the state toxicologist, all of which resulted

in the introduction and admission of prejudicial and in-

criminating evidence at his trial.

(i) Petitioner was deprived of due process of law and

the equal protection of the laws in violation of the Four-

teenth Amendment to the United States Constitution in

that he was given no opportunity to prove that he did

not voluntarily submit to the surrender of his clothing,

the photographing of his nude body and the combing of

his pubic hairs, but instead the jury decided the issue

of voluntariness simultaneously with its determination of

his guilt. 7

(j) Petitioner was deprived of due process of law and

the equal protection of the_laws in violation of the Four-

teenth Amendment to the United States Constitution in

Coram Nobis Petition

that women were excluded from service on the grand and

petit juries pursuant to Title 30, §21 of the Alabama

Code, which statute makes women ineligible for jury

service.

4. In support of subdivision (a) of paragraph 3, peti-

tioner shows the Court as follows:

No Negro served on a petit jury in Talladega County

between 1950 and the date of petitioner’s trial in 1962 in

either a civil or criminal case. Petitioner offers to prove

that the Cireuit Solicitor of Talladega County was re-

sponsible for the total absence of Negroes on petit juries

in criminal cases in that he consistently struck all Negroes

remaining on the venire if he was unable to obtain the

agreement of defense counsel to the elimination of Negro

venireman. The United States Supreme Court indicated

in its opinion in this case that such a practice, if proved,

would constitute a violation of the Fourteenth Amendment,

Swam v. Alabama, 13 L. ed. 2d 774.

Petitioner is unable to present proof of the above allega-

tion by affidavit at this time. The individual best able to

execute an affidavit supporting this allegation is the Circuit

Solicitor, Hon. W. E. Hollingsworth, Jr., who represented

the State of Alabama at the trial of this case and who is

adverse to the interests of petitioner. Moreover, this is

the type of issue which can only be decided after a full

hearing with compulsory process, examination and cross-

examination of witnesses.

The United States Supreme Court held in this case

that the issue presented by petitioner’s allegations had not

been adequately heard, and petitioner respectfully requests

a full evidentiary hearing on this issue before this Court

or before the Circuit Court of Talladega County.

Perennncrnansanennn Seatabtetacitiinlinn ie Wha ard 0

Coram Nobis Petition

5. In support of subdivision (b) of paragraph 4, peti-

tioner shows the Court as follows:

At the trial of this case, during his argument before

the jury, the Circuit Solicitor made the following state-

ments:

Gentlemen, do you think we have proved these tree

elements? I submit to you it is not denied, there

is not a word come from this stand that denied the

charge of rape. We have proved it to you, gentlemen,

beyond a reasonable doubt that this prosecuting wit-

ness was raped. Now the only question that the de-

fendant has raised here by his attorneys is the ques-

tion of identify [sic]. (Transcript, p. 354)

This Court held on appeal of this case that such state-

ment did not violate Alabama Code 1940, Tit. 15, 4 305,

as amended by Act No. 124, app’vd June 23, 1949, Acts

1949, p. 159. Robert Swain v. State of Alabama, 275 Ala.

008, 156 So. 2d 368, 378. Since this Court’s decision, the

Supreme Court of the United States has held that the

privilege against self-incrimination guaranteed by the Fifth

Amendment to the United States Constitution is applica-

ble to proceedings in the state courts under the Fourteenth

Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489

(1964). Subsequently, the United States Supreme Court

held that comment by either judge or prosecuting attorney

on the defendant’s failure to take the stand in a state court

trial violates the Fifth and Fourteenth Amendments to

the United States Constitution. Griffin v. California, ——

U.S. —, 85 S. Ct. ——, 14 L. ed. 2d 106 (1965). The issue

raised here was not treated as a federal constitutional

issue by this Court, nor was this issue raised in or passed

upon by the United States Supreme Court in this case.

Coram Nobis Petttion

Petitioner respectfully submits that the recent decisions

of the United States Supreme Court require that this

Court hear and determine the federal constitutional issue

now presented, and petitioner further submits that he is

entitled to a new trial.

6. In support of subdivision (c) of paragraph 3, peti-

tioner shows the Court as follows:

At the trial of this case, during his argument before the

jury, the Circuit Solicitor made the following statements:

Do you think this young lady, Jimmie Sue Butter-

worth, consented to have this defendant have that

rough and rugged intercourse where this impact

against her body caused loose hairs to come out of

his privates? You gentlemen know the way a colored

person—you have seen them, you have seen their hair.

You know, gentlemen, it is coarse. You know that it

is rough. You know from your own experience with

everyday life that when any two forces meet each

other and that there is a rubbing or banging there

there are going to be hairs lost. Most of you men are

married men. You have had everyday experiences.

You know from your own knowledge that people shed

hairs and they lose them, but gentlemen how many of

you if they took us out and shook our clothes would

find negroid hairs falling from our privates? (Tran-

script, p. 354)

Mr. HotuincswortH: Think what it has done to

that child’s life. When will she ever forget the day

of February 7, 1962, when a bootlegger was riding

the road and decides he wants to stop and rape some-

body in that community right near the county line.

Coram Nobis Petition

-Mr. Hau: I your Honor please, we object to the

use of the term “bootlegger”. We don’t recall any tes-

timony, any evidence coming from this witness stand

that this man was a bootlegger.

Tue Court: Ill sustain the objection and I'll in-

struct the jury not to consider it.

Mr. Hatt: We move for a mistrial, your Honor.

Tue Court: I’ll overrule the motion for a mistrial.

Mr. Hatt: We take exception.

Mr. Howiineswortx: The way I understand it, he

said he was going to get a load from Opelika. (Tran-

script, pp. 355, 356)

Mz. Love: When he left City Motor Company down

here, gentlemen, he had something on his mind. I'll

tell you what he had on his mind. He had Mrs. Weldon

on his mind. He had been passing that house, she

stated she had been living there for ten years.

Mr. Hau: If your Honor please, we respectfully

would like to interrupt Mr. Love at this time and make

an objection. There is no evidence in this trial that

this defendant had Mrs. Weldon on his mind. There

is nothing at all to connect Mrs. Weldon with this

ease. We would respectfully urge your Honor that

this is truly prejudicial to this defendant, incompetent,

immaterial, illegal and has no place in this argument.

Mr. Hotuincswortn: Your Honor, I would like to

state this. The State has a right to argue what has

been presented before the Court. And the evidence

is disputed in this case that this defendant went to

Mrs. Weldon’s house first, the testimony has been that

she has lived there for ten or more years on that par-

ticular road at that particular place, that he parked

his car down below her house and that he went to

10a

Coram Nobis Petition

her house first. And that when he left he didn’t go

back to his car, he went the other way. This jury has

seen Mrs. Weldon and they have the right to take into

play their own knowledge and common sense as to

what they see and what they have heard in this court-

room. The State has a right to argue the evidence.

Mr. Hau: If your Honor please, as we recall the

» evidence, both ladies testified that whoever came to

their door asked for a telephone. The defense thought

that was the reason suggested, that was the only rea-

son certainly offered in this court, in the testimony.

We think it highly improper to argue to the jury that

there was some other reason for going there when

there is not one iota of testimony which has been in-

troduced to that effect.

Tue Court: Gentlemen of the jury I will instruct

you at this time that it is the law that counsel for

either side can argue any reasonable inference to be

drawn from the evidence in the case, however, what

was evidence in the case or what is a fact in the case,

is a matter for you and you alone to decide. I’ll over-

rule your objection.

Mr. Bruuincstey: Your Honor, we would like to

ask for a mistrial and would like the remarks stated

by Mr. Love included in the transcript of the record.

Tue Court: I'll overrule the motion for a new trial.

Mr. BuurnestEy: We take exception. (Transcript,

pp. 352, 353)

Mr. HotuineswortH: ... Think with me, gentlemen

as we go through the evidence, some of the State’s

evidence on identity. First—now you gentlemen ob-

served Mrs. Weldon. To me she was a nice looking,

attractive, pleasant, agreeable person. She looked to

me like she would be a Christian woman. There is

ee ee

lla

Coram Nobis Petition

nothing from this stand to denote to the contrary. The

only thing, if i was being critical of her, I would think

she was a poor judge of distance. (Transcript, p. 354)

7. In support of subdivision (d) of paragraph 3, peti-

tioner shows to the Court as follows:

(a) According to the United States Census, Alabama’s

population was as follows between 1930 and the present:

Total White % Nonwhite

Year Population Population White Population Nonwhite

1930 2,646,248 1,700,844 64.3 945,404 39.7

1940 2,832,961 1,849,097 65.3 983,864 34.7

1950 3,061,748 2,079,591 67.9 982,152 32.1

1960 3,266,740 2,283,609 69.9 983,131 30.1

(b) Between January 1, 1930 and December 31, 1964, the

State of Alabama executed 134 persons, of whom 107 or

79.8 per cent were Negroes and 27 or 20.2 per cent were

white persons.

As of March 17, 1965, 18 persons were committed to

Kilby Prison awaiting execution by the State of Alabama,

of whom 11 were Negroes and 7 were white.

State of Alabama executed 22 persons for the crime of

rape, of whom 20 or 90.9 per cent were Negroes and 2 or

9.1 per cent were white persons. As of March 17, 1965, 2

persons were committed to Kilby Prison awaiting execu-

tion by the State of Alabama for the crime of rape, both

of whom were Negroes.

(d) According to the records on file in this Court of

those cases resulting in execution of the defendant for the

crime of rape in the State of Alabama since 1930, to the

extent that they reveal information as to the race of the

12a

Coram Nobis Petttion

victim of the crime, in every case involving the execution

of a Negro or a white man for the crime of rape, the victim

of the crime was a white woman. In 11 of these cases, the

record on file in this court explicitly discloses that the vic-

tim of the crime was white. The names, docket numbers

and dates of decision by this court of those cases are as

follows :

Name Citation Date of Decision Docket No.

Charles Williams v. 224 Ala. 6 December 3, 1931 1 Div. 678

State of Alabama

Roosevelt Collins v. 234 Ala. 197 May 27, 1937 7 Div. 408

State of Alabama

Charles White v. 237 Ala. 610 April 27, 1939 4 Div. 46

State of Alabama

Norman Bell v. 238 Ala. 586 December 4, 1939 1 Div. 72

Stete of Alabama

William Clark v. . 239 Ala. 380 March 4, 1940 8 Div. 946

State of Alabama

Henry Daniels, Jr. v. 243 Ala. 675 January 21, 1943 1 Div. 162

State of Alabama

Curtis Robinson v. 243 Ala. 684 January 28, 1943 1 Div. 163

State of Alabama

Reuben Myhand v. 259 Ala. 415 August 6, 1953 4 Div. 711

State of Alabama

Melvin Jackson v. 262 Ala. 528 June 21, 1956 4 Div. 817

State of Alabama

Jeremiah Reeves v. 264 Ala. 476 June 21, 1956 3 Div. 751

State of Alabama

Ernest Cornell Walker v. 269 Ala. 555 September 17, 1959 6 Div. 381

State of Alabama

In five other cases in which Negroes were executed for the

crime of rape, there is information in the record from

which the inference may fairly be drawn that the victim

was white. These cases are as follows:

13a

Coram Nobis Petition

Name Citation Date of Decision Docket No.

Jimmie Brown Vv. 236 Ala. 423 October 6, 1938 6 Div. 145

State of Alabama

Frank Johnson v. 242 Ala. 278 January 14, 1942 6 Div. 873

State of Alabama

William N. Snead v. 243 Ala. 231 May 14, 1942 6 Div. 866

State of Alabama

Johnnie B. Smith v. 247 Ala. 354 January 24, 1946 6 Div. 333

State of Alabama

Jesse Frank Jackson v. 260 Ala. 641 April 22, 1954 3 Div. 667

State of Alabama

In five of the cases resulting in the execution of a Negro

for the crime of rape in the State of Alabama, the tran-

script of trial in this Court, if any, does not disclose the

race of the victim of the crime. In the only two cases re-

sulting in the execution of white persons for the crime

of rape, there is information in the record on file in this

Court from which the inference may fairly be drawn that

the victim of the crime was white. Daniel T. Reedy v. State

of Alabama, 246 Ala. 363. Joseph H. Hockenberry v. State

of Alabama, 246 Ala. 369, —— So. 2d ——.

The two men presently awaiting execution in Kilby

Prison for the crime of rape are Robert Swain and Drewey

Aaron, Jr. Robert Swain is the petitioner in this case.

He was convicted of the rape of a white woman. Drewey

Aaron, a Negro, was also convicted of the rape of a white

woman. Aaron v. State of Alabama, 273 Ala. 337, 139 So.

2d 309 (1961).

In the only other case known to the petitioner of defend-

ants presently under sentence of death for the crime of

rape in the State of Alabama, three men were separately

tried, convicted and sentenced to death for the crime of

rape against a white woman in Etowah County during

the past three months. The names of these cases are:

l4a

Coram Nobis Petition

State of Alabama v. Wheeler Billingsley, Jr.,

Cir. Ct. No. 743;

State of Alabama v. Robert Butler, Cir. Ct.

No. 744;

State of Alabama v. James Liddell, Cir. Ct.

No. 745.

Petitioner alleges that the gross disparity shown above

between the proportion of Negroes in the population and

the proportion of Negroes sentenced to death and exec-

uted for the crime of rape is the result of a racially dis-

criminatory system of justice and is not explainable by

other factors reasonably related to a rational system of

imposing sentence. Petitioner alleges that Negroes have

been sentenced to death for crimes which, if committed by

persons of the white race, would not have resuited in im-

position of the death penalty.

Petitioner offers to prove that race is the sole explana-

tion for the grossly disproportionate number of Negro ex-

ecutions for rape by reference to judicial records and the

testimony of attorneys in rape cases in all counties of

Alabama or a representative sample of Alabama counties.

Petitioner respectfully requests a full hearing with op-

portunity to prove his allegations with the benefit of com-

pulsory process of witnesses, production of records, exam-

ination and cross-examination of witnesses. Petitioner also

respectfully requests the opportunity to take depositions

in preparation for such a hearing. Petitioner is hampered

by the unavailability of deposition and discovery proce-

dures in criminal cases. Proper development of this fun-

damental issue of constitutional law requires an evidentiary

hearing with the opportunity for full and effective prep-

aration.

15a

Coram Nobis Petttion

8. In support of subdivision (2) of paragraph 3, peti-

tioner shows the Court as follows:

Title 14, §395 of the Alabama Code gives the trial jury

complete discretion to impose auy penalty between a term

of 10 years and death. No rational, fair or uniform stand-

ards are set by statute, and the trial judge gave the jury

no directions as to choosing among allowable sentences.

Such a system allows juries to consider discriminatory

racial factors in the sentencing process, and petitioner al-

leges that juries in rape cases have imposed harsher sen-

tences upon Negroes than those imposed on white defend-

ants.

9. In support of subdivision (f) of paragraph 3, peti-

tioner shows the Court as follows:

The petit jury determined petitioner’s sentenee at the

same time that it determined his guilt. Petitioner was

deprived of the opportunity to present evidence in mitiga-

tion without taking the stand in his own defense and for-

feiting the privilege against self-incrimination.

10. In support of subdivision (g) of paragraph 3, peti-

tioner shows the Court as follows:

Capital punishment is retained for the crime of rape in

only 17 states and four foreign counties. See Rudolph v.

Alabama, 375 U. S. 889 (1963) (dissenting opinion). Im-

position of such a penalty for rape violates evolving stand-

ards of decency which are almost universally accepted.

The taking of human life to protect a value other than

human life is inconsistent with the constitutional prescrip-

tion against punishments which are greatly dispropor-

tionate to the offense charged. Permissible aims of pun-

16a

Coram Nobis Petition

ishment, such as deterrence, isolation, and rehabilitation

can be achieved as effectively by punishing rape less se-

verely than by death and this penalty constitutes unnec-

essary cruelty.

11. In support of subdivision (h) of paragraph 3, peti-

tioner shows the Court as follows:

Petitioner did not submit voluntarily to the surrender

of his clothing, the photographing of his nude body, and

the combing of his pubic hairs. Petitioner was not ade-

quately informed of his rights and he did not waive his

right to counsel and privilege against self-incrimination.

Petitioner had little education and was not acquainted with

legal procedures. He asked to see his father and was re-

fused.

Irrespective of the issue of voluntariness, petitioner was

deprived of his constitutional rights when officers of the

state took his clothing, photographed his body and combed

his pubic hairs. These actions were taken while petitioner

was being unlawfully restrained of his liberty. Petitioner

was not lawfully arrested, but was being held for investiga-

tion at the time.

12. In support of subdivision (i) of paragraph 3, peti-

tioner shows the Court as follows:

Petitioner was given no opportunity to take the stand

and deny that he voluntarily submitted to the taking of his

clothing, the photographing of his body, and the combing

of his pubic hairs, without surrendering the privilege

against self-incrimination. Moreover, the issue of admis-

sibility of the photographs, clothing and hairs was not de-

termined by the court in a separate proceeding and away

ee oe renee

17a

Coram Nobis Petition

from the presence of the jury. See Jackson v. Denno, 378

U. S. 368 (1964).

13. In support of subdivision (j) of paragraph 3, peti-

tioner shows the Court as follows:

Title 30, §21 of the Alabama Code specifies that only

the names of males shall be placed on the jury roll.

14. Petitioner respectfully requests that the Court stay

the execution of defendant’s death sentence, grant a full

evidentiary hearing on those issues as to which the at-

tached affidavits do not suffice, and grant him the right to

file a petition in the Cireuit Court of Talladega County

for a writ of error coram nobis to inquire into the facts

alleged herein or grant such additional or alternative re-

lief as the Court may deem appropriate.

/3/ Rosert Swarr

Rosert Swarr

Petitioner

/8/ Onze, Buuinesiey, Jr.

Onze, Buuinosiey, Jr.

/8/ Perer A. Hatt

Perer A. Haut

1630 Fourth Avenue North

Birmingham, Alabama

Jack GREENBERG

James M. Naserr, III

MicHaeL MeLtTsner

Frank H. Herrron

10 Columbus Circle

New York, N. Y. 10019

Attorneys for Petitioner

18a

Verification

State of Alabama )

Montgomery County )

Personally appeared before me, the undersigned author-

ity, a notary public for said State and County, Robert

Swain, who being by me first duly sworn, deposes and says

that he is the petitioner in the foregoing petition, that he

has read the said petition and that the facts and things

therein alleged are true and correct to the best of his

knowledge and information and belief.

/8/ Rosert Swain

Rosert Swain

Petitioner

Sworn to and subscribed before me this 25th day of

June, 1965.

/s/ OxzetL BruinGsLey, JR.

OrzELL BrILinGsLey, JR.

Notary Public, Montgomery

County, Alabama

19a

Certificate

I, the undersigned counsel of record for Robert Swain,

hereby certify that I have this day delivered to the Attor-

ney General of Alabama a copy of the foregoing petition.

Dated this 25th day of June, 1965.

/8/ Onzet, Bruinestey, Jr.

Onze, Brurasiey, Jr.

Attorney for Petitioner

20a

Affidavit of Frank H. Heffron

IN THE SUPREME COURT OF ALABAMA

Ex Parte RKosert Swain

State or New York,

County or New Yokk, 8s.:

Frank H. Herrsron, being duly sworn, deposes and says:

1. I am an attorney at law admitted to practice in the

courts of New York on March 25, 1963.

2. I have inspected the official publications of the

United States Department of Justice, Bureau of Prisons,

and can state, on the basis of those reports, that between

January 1, 1930 and December 31, 1964, the State of

Alabama executed 134 persons of whom 107 were Negroes

and 27 were white persons; that during the same period

of time, the State of Alabama executed 22 persons for

the crime of rape of whom 20 were Negroes and 2 were

white persons. National Prisoner Statistics Bulletin on

Executions 1930-1964, No. 37 (April 1965).

3. I have in my possession a certificate executed by

Milford S. Dean, Chief Clerk of Records and Identifica-

tion of the Alabama State Board of Corrections, stating

the following information as to the name, race and date

of execution of all persons lawfully executed for the crime

of rape in the State of Alabama between 1927 and October

18, 1963:

Name Race Date of Execution

Cleveland Malone Negro February 27, 1931

Mose Daniels Negro March 27, 1931

Charley Williams Negro January 15, 1932

Roosevelt Collins Negro June 11, 1937

ns ee ee ee ee Pn ne

Pee erates WES re eats aetna one.

RE Ph A a Bae le Me Metered Re

2la

Affidavit of Frank H. Heffron

Name Race Date of Execution

Curtis Cobb Negro August 19, 1938

Jimmie Brown Negro November 25, 1938

Roy Anderson Negro June 9, 1939

Charles White Negro June 9, 1939

Herman Bell Negro March 29, 1940

Willie James Brandon Negro August 9, 1940

William Clark Negro July 17, 1941

William N. Snead Negro June 26, 1942

Frank Johnson Negro June 4, 1943

Henry Daniels, Jr. Negro August 13, 1943

Curtis Robinson Negro August 13, 1943

Joseph H. Hockenberry White March 16, 1945

Daniel T. Reddy White March 16, 1945

Jesse Frank Jackson Negro June 4, 1954

Melvin Jackson Negro September 28, 1956

Jeremiah Reeves Negro March 26, 1958

Ernest Cornell Walker Negro December 4, 1959

4. On March 17, 1965, I was present in Kilby Prison and

observed the official records of Kilby Prison which showed

that as of March 17, 1965, 18 persons were on death row

awaiting execution of whom 11 were N egroes and 7 were

whites.

5. I am presently associated with counsel of record in

the cases of Robert Swain and Drewey Aaron, Jr., and

I can state that both are Negroes presently under sentence

of death in Kilby Prison as the result of conviction for

rape of white women.

6. I am associated with counsel of record in the cases

of State of Alabama v. Wheeler Billingsley, Jr., Etowah

County Circuit Court No. 743, State of Alabama v. Robert

Butler, Etowah County Circuit Court No. 744, and State

22a

Affidavit of Frank H. Heffron

of Alabama v. James Biddell, Etowah County Circuit Court

No. 745. In all three of these cases, the defendants are

Negroes recently sentenced to dath for the rape of a white

woman.

7.’ In the case of State of Alabama v. Wheeler Billing-

sley, Jr., Etowah County Circuit No. 743, the defendant

filled a motion for new trial and a motion for reduction

of sentence raising the claim that the death penalty is

discriminatorily applied against Negroes in rape cases

by the State of Alabama. In preparation for hearing on

that motion, defendant issued subpoenas duces tecum to

the Circuit Court Clerks of all counties in Alabama re-

quiring their appearance at the hearing with records of

rape cases in their courts between 1930 and 1965. On

motion to quash the subpoenas, the Circuit Court, on

June 2, 1965, quashed all of the subpoenas duces tecum

except that issued to the Circuit Clerk of Etowah County.

At the same time, the Circuit Court of Etowah Courity

denied defendant permission to take depositions of the

Circuit Clerks except those residing more than 100 miles

away from Etowah County.

/s/ Frank H. Herrron

Frank H. Herrron

Sworn to before me this 24th day of June, 1965.

/s/ Marsorre H. Dosweti

Marsorre H. DosweLu

Notary Public, State of New York

No. 31-6082800

Qualified in New York County

Commission Expires March 30, 1966

23a

Affidavit of Fred Wallace

IN THE SUPREME COURT OF ALABAMA

Ex Parte Rosert Swam

State or New York,

County or New Yokrk, ss.:

Frep Wattace, being first duly sworn, deposes and says:

1. I am a graduate of the Harvard University School

of Law and was awarded the degree of Bachelor of Laws

in June, 1964.

2. During April, 1963 I inspected the official records

of Supreme Court of Alabama on file in the Judicial

Building, Montgomery, Alabama, of all cases resulting in

execution of the defendant for the crime of rape in

Alabama.

3. In the following cases resulting in execution of the

Negro defendant for the crime of rape, the record dis-

closes that the victim of the crime was white: Charles

Wiliams v. State, Transcript, p. 14; Roosevelt Collins v.

State, Transcript, p. 4; Charles White v. State, Transcript,

p. 44; Norman Bell v. State, Transcript, p. 61; William

Clark v. State, Transcript, p. 24; Henry Daniels, Jr. v.

State, Transcript, p. 29; Reuben Myhand v. State, Tran-

script, p. 417; Melvin Jackson v. State, Opinion of the

Court, 88 So. 2d 206; Jeremiah Reeves v. State, Opinion

of the Court, 68 So. 2d 14, 16; Ernest Cornell Walker v.

State, Opinion of the Court, 114 So. 2d 402, 403.

4. In the following cases resulting in the execution of

the Negro defendants, the inference may fairly be drawn

Pe agg A fmm

EM DAO EOE AMINE IRS MEY Os SDE OLA WROD cart

24a

Affidavit of Fred Wallace

from the transcript on file that the victim of the crime

was white.

Jimmie Brown v. State, Transcript; Frank Johnson v.

State, Transcript, p. 126; William N. Snead v. State,

Transcript, p. 52; Johnnie B. Smith v. State, Transcript,

p. 247; Jesse Frank Jackson v. State, Transcript, p. 43.

5. In the only two cases resulting in the execution of

the white defendant, the inference may fairly be drawn

from the transcript on file that the victim of the crime

was white: Daniel T. Reedy v. State; Joseph H. Hocken-

berry v. State.

/s8/ Frep WaLLAcE

Frep WALLACE

Sworn to before me this 24th day of June 1965.

/s/ Marsorrme H. Doswe.i

Marsorre H. Dosweii

Notary Public, State of New York

No. 31-6082800

Qualified in New York County

Commission Expires March 30, 1966

25a

Affidavit of Eddie Howard Tucker

IN THE SUPREME COURT OF ALABAMA

Ex Parte Rosert Swain

State or New York,

County or New York, ss.:

Epp Howarp Tucker, being duly sworn, deposes and

says:

1. I am an attorney at law admitted to the bar of the

State of Mississippi, May 3, 1965.

2. On June 23, 1965, I inspected the records of the United

States Department of Commerce, Bureau of Census, 350

Fifth Avenue, New York, New York. Upon examination

of the official records of the Census Bureau, I state that

the population figures set forth in paragraph 7 (a) of the

petition for leave to file petition for writ of error coram

nobis in the Circuit Court of Talladega County, are true,

correct, and accurate.

/s/ Evpr H. Tucxker

Eppr H. Tucker

Sworn to before me this 24th day of June, 1965.

/8/ Marsorre H. Dosweii

Marsorre H. Dosweiu

Notary Public, State of New York

No. 31-6082800

Qualified in New York County

Commission Expires March 30, 1966

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.